Can a Treating Physician Opine on Causation? Eleventh Circuit Says It’s About Intent, not Content

Federal Rule of Civil Procedure 26(a)(2) outlines two different sets of pretrial disclosure requirements, imposing more onerous requirements on “retained” than “non-retained” experts. Relatedly, when non-retained expert witnesses offer opinions based on information obtained outside the scope of their personal involvement in the facts of the case, most courts require them to submit a full Rule 26(a)(2)(B) report.  See, e.g., Goodman v. Staples The Office Superstore LLC, 644 F.3d 817, 826 (9th Cir. 2011).  Thus, for example, a physician who provided care to a personal injury plaintiff is treated as a retained expert for disclosure purposes when he or she bases a causation opinion on materials provided by an attorney and reviewed as part of the litigation.  Some courts, taking this rationale a step further, have required all experts who opine on certain topics – for example, causation – to submit a full Rule 26(a)(2)(B) report.  See, e.g., Muzaffarr v. Ross Dress for Less, Inc., 2013 WL 3850848 (S.D. Fla. July 26, 2013).  But according to the Eleventh Circuit’s recent opinion in Cedant v. United States, --- F.4th ---, 2023 WL 4986402 (11th Cir. 2023), such rules invert the Rule 26(a)(2) analysis.