July 2011

Last month, the Supreme Court denied certiorari in the matter of Tamraz v. Lincoln Elec. Co., 620 F.3d 665 (6th Cir. 2010) (you can read John Sear's thoughts on that decision here). The plaintiff sought to overturn the Sixth Circuit's ruling that the testimony of the plaintiff's primary medical expert should have been excluded due to its speculative and hypothetical nature. The plaintiff's petition for a writ of certiorari took issue with two aspects of the Sixth Circuit's opinion: that it ran afoul of Daubert's flexible standard for admitting expert testimony, and that it usurped the district judge's "gatekeeping" function by applying a de novo standard of review. read more

In early May, the Ninth Circuit handed down its opinion in Goodman v. Staples, a case that examined when a treating physician becomes an expert witness for purposes of the written disclosure requirements of Federal Rule of Civil Procedure 26(a)(2). Rule 26(a)(2) requires parties to disclose a written report for each expert witness the party intends to call, stating the opinions they plan to express and the scientific basis for those opinions. Traditionally, treating physicians are exempt from providing the opposing parties with this written report because they aren’t "specifically retained to provide expert testimony." FED. R. CIV. P. 26(a)(2)(B). Instead, treating physicians testify on what they actually saw or did with a given patient. read more