In many product liability cases, as well as other tort actions, deposition testimony of treating physicians raises several issues. Are treating physicians experts or fact witnesses? FRCP 26 contemplates two types of experts; FRCP 26(a)(2)(A) requires that a party disclose the identity of any person who is going to testify as an expert at trial. The Advisory Committee Notes to the 1993 amendments of FRCP 26 provide that “the term ‘expert’ refers to those persons that will testify under Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and other specialized matters.” FRCP 26(a)(2)(B) requires that any expert “retained or specially employed” must submit a written report for the adversary that contains all opinions to be expressed and the basis and reasons therefor.

The requirement of a written report in paragraph (2)(B) applies only to those experts who are “retained or specially employed” to provide such testimony in the case. FRCP 26(b)(4)(C) governs the payment of a reasonable fee to experts for depositions, but does not distinguish between those persons who may give expert testimony pursuant to FRCP 26(a)(2)(A) and those who have been specifically retained to provide expert testimony pursuant to FRCP 26(a)(2)(B). So, are treating physicians “2A experts” or “2B experts” (requiring a report) and must they be paid for a deposition?

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