Legal Notices

Federal Court in Eastern District Excludes Plaintiff’s Medical Expert Evidence

The plaintiff’s personal injury action was seriously undermined by Senior U.S. District Judge Robert Doumar’s decision to exclude all testimony of Dr. Harold Cloud and the causation opinion testimony of Dr. Arthur Wardell.  Judge Doumar’s opinion in Perkins v. United States, 2009 WL 1703089 (E.D. Va., 6/16/09), provides significant ammunition to defendants in their effort to defeat common practices followed by many plaintiffs’ counsel.

The plaintiff disclosed Dr. Cloud as an expert witness pursuant to Federal Rule of Civil Procedure 26(a)(2)(A), but did not provide an expert report from Dr. Cloud under Rule 26(a)(2)(B), contending that Dr. Cloud was a “treating physician,” rather than “one retained or specially employed to provide expert testimony in the case.”  Judge Doumar resolved in favor of the defendant the question of when a treating physician becomes a “specially retained” expert under the Rule, such that a written expert report must be provided.  Judge Doumar recognized that, in general, a treating physician is not a “specially retained” expert witness.  However, “when an attorney selects the physician for treatment as well as testimony, it is presumed that the physician was [specially] selected for expert testimony.”  Consequently, the failure of Dr. Cloud to provide an expert report constituted a violation of the Rule, and Judge Doumar excluded Dr. Cloud’s testimony in its entirety for all purposes.

Judge Doumar also excluded the opinion testimony of Dr. Wardell under the standard established by the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and by Federal Rule of Evidence 702.  Judge Doumar noted that the Daubert standard applies to a treating physician’s expert opinion on causation; such opinion “is subject to the same standards of scientific reliability that govern the expert opinions of physicians hired solely for purposes of litigation.”  For three stated reasons, Judge Doumar concluded that Dr. Wardell’s opinion on the causation of the plaintiff’s injuries lacked sufficient reliability, one of the Daubert criteria, and such opinion testimony was thus inadmissible.  While Dr. Wardell could testify at trial, his testimony could relate only to his treatment of the plaintiff, and he could not state opinions regarding the causation of the plaintiff’s injuries or his prognosis for future medical treatment and costs.

The three-fold reasoning of Judge Doumar’s decision may be summarized as follows:  First, Dr. Wardell’s causation opinion was based solely on the plaintiff’s “self-report that the injuries were caused by the motor vehicle accident.”  Judge Doumar cited other authority for the proposition that “merely adopting a patient’s theory of causation” fails to meet one or more of the factors established by Daubert and the Advisory Committee Notes to the 2000 Amendments to Rule 702, adopted as a codification of Daubert.  Second, Dr. Wardell did not adequately investigate the plaintiff’s relevant medical history, which included prior motor vehicle accidents, industrial accidents, and emergency room visits.  Third, and of particular importance, Dr. Wardell failed to consider alternative explanations for the plaintiff’s injuries.  Dr. Wardell either dismissed or ignored evidence of pre-existing conditions, when such evidence was available to him at the time of his treatment.  Dr. Wardell’s failure to adequately account for osteoarthritis as an “obvious alternative explanation” and his failure to address the issue of obesity created “a fatal analytical gap in his testimony.”  Judge Doumar concluded, “By selectively ignoring the facts that would hinder the patient’s status as a litigant, Dr. Wardell reveals himself as the infamous ‘hired gun’ expert.”