JUDGE COAR

STANDING ORDER AS TO EXPERT

DISCLOSURE AND DISCOVERY

There has been a great deal of confusion as to the interpretation of and interplay between Rules 26(a)(2) and 26(b)(4) of the Federal Rules of Civil Procedure. Rule 26(a)(2)(A) requires the disclosure of the identity of any person who may present evidence under the Federal Rules of Evidence Rules 702 (Testimony by Experts), 703 (Bases of Opinion Testimony by Experts), or 705 (Disclosure of Facts or Data Underlying Expert Opinion). Rule 26(a)(2)(B) requires a written report as to certain categories of experts (witnesses retained or specially employed to provide expert testimony, or employees of a party whose duties regularly involve giving expert testimony). Rule 26(b)(4) provides that a party may depose any expert identified pursuant to Rule 26(a)(2)(A).

Three related recurring problems have arisen:

1) Are treating physicians "experts" and, if so, are they covered by the report requirement of Rule 26(a)(2)(B)?

2) Must witnesses covered by Rule 26(a)(2)(A) but not rule 26(a)(2)(B) be specifically identified as being Rule 702 witnesses?

3) If the answer to question 2) above is yes, may a party simply identify a witness subject to Rule 26(a)(2)(A) during discovery, but withhold the fact that the witness will be asked to give Rule 702 evidence until the pretrial order is prepared?

In order to supplement Rules 26(a)(2) and (b)(4), reduce confusion, and provide a standard procedure that accomplishes the aims of Rule 26, it is hereby ordered that unless otherwise ordered by the undersigned, the following procedure will be followed:

1) TREATING PHYSICIANS

Treating physician must be identified pursuant to Rule 26(a)(2)(A) but the report requirement of Rule 26(a)(2)(B) shall not apply to the extent that the testimony of such treating physician is limited to: (a) a description of the symptoms presented to the physician; (b) description of records or other information relied on to provide treatment; (c) any diagnosis made for purpose of treatment, and (d) a description of any treatment prescribed or provided. Testimony by a treating physician as to causation or prognosis or future impact of the condition or injury is subject to the report requirement of Rule 26(a)(2)(B).

2. EXPERTS REQUIRED TO BE DISCLOSED PURSUANT TO RULE 26(a)(2)(A)

All experts required to be disclosed pursuant to Rule 26(a)(2)(A) must be disclosed within the time limit set for disclosure of experts in the scheduling order or, in the absence of an order, within the time periods set forth in Rule 26(a)(2)(C). The Rule 26(a)(2)(A) disclosure shall specifically designate the witness as a person who may give Rule 702, 703, or 705 testimony. If the witness so identified is not subject to the report requirements of Rule 26(a)(2)(B), the Rule 26(a)(2)(A) identification disclosure shall nevertheless include a written statement containing a complete statement as to all expert opinions to be expressed by that witness.

Discovery deadlines as to all Rule 26(a)(2)(A) experts will be as provided in the scheduling order.

ENTER:

David H. Coar

United States District Judge

Revised: September 2002