United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION FOR RECONSIDERATION
HONORABLE RONALD B. LEIGHTON JUDGE.
MATTER is before the Court on Defendants' Motion for
Reconsideration [Dkt. # 132] of the Court's Order [Dkt. #
131] regarding Gallagher's Motion to Exclude [Dkt. # 84].
Gallagher asked the Court to exclude the expert testimony of
Gallagher's treating medical providers, who are also
defendants, because they did not prepare expert reports under
Fed.R.Civ.P. 26(a)(2)(B). Gallagher specifically objected to
the defendant treaters opining that the care each provided to
him was medically appropriate and consistent with the
Offender Health Plan and with the Eighth Amendment; i.e. that
each was not deliberately indifferent to Gallagher's
serious medical needs. The Court disagreed with the
Magistrate Judge on that point and its Order was intended to
preclude such testimony.
Defendants seek reconsideration or clarification. They
argue that the Rules do not require a treating
physician to provide an expert report, that no cases so hold,
and that requiring a report from a party would jeopardize
(under Rule 26(b)(4)) a defendant treating doctor's
parties seem to agree that a treating physician is
only exempt from Rule 26(a)(2)(B)'s written
report requirement to the extent that his opinions were
formed during the course of treatment. Goodman v. Staples
the Superstore LLC, 644 F.3d 817, 826 (9th Cir. 2011)
(emphasis added). Goodman involved treating physicians the
plaintiff later retained to provide expert testimony; they
were not defendants. Because they formed some of their
opinions after the treatment, they were required to produce a
defendants' argument pre-supposes that their proffered
opinions were formed during their treatment of Gallagher. But
Gallagher argues, persuasively, that none of his medical
records reflect any legal conclusion; it would indeed be
unusual for a treating physician to form an opinion about the
constitutionality of his conduct unless and until his
incarcerated patient claimed that that his care was
constitutionally deficient. As the Magistrate Judge
accurately articulated, the treater's opinions typically
involve examination, diagnosis, treatment, prognosis, and,
sometimes, causation. See Dkt. # 127 at 10,
citing Piper v. Harnschfeger, 170 F.R.D. 173 (D.
Nev. 1997). But where the expert's opinions exceed the
ordinary care of the patient, they go beyond the scope of a
treating physicians testimony, and the exception does not
apply. Goodman at 819 (a report is required
“when a treating physician morphs into a witness hired
to render expert opinions that go beyond the usual scope of a
treating doctor's testimony.”). This reasoning
applies with equal force when the treating expert was not
hired to give the opinion, but is instead a
defendant with an even bigger stake in giving it.
treating defendants are free to testify about their treatment
and the opinions the formed during its course. They are
simply precluded form opining about things-the
constitutionality of their conduct being the major one-that
they did not develop during the course of that treatment.
conclusion is bolstered by the fact that the opinion concerns
the ultimate question for the jury: did Gallagher's
medical treatment violate the Eight Amendment? Fed. R. Ev.
704 somewhat unhelpfully provides that an opinion on an
ultimate issue is not automatically objectionable,
which is not to say that it is necessarily admissible. In any
event, it has long been this Court's practice to preclude
an expert in, for example, an excessive force case from
opining that the defendant officer's conduct was (or was
not) a violation of the Fourth Amendment.
Motion for Reconsideration is DENIED. If and to the extent
this Order Clarifies the Court's prior ruling and its
reasoning, the Motion to Clarify is Granted.
 The expert opinion testimony of three
such treating defendants is at issue: Doctors Fetroe and
Johnson and ARNP Kroha. PA-C Peterson treated Gallagher but
is not a defendant. Defendants have agreed not to call Dr.
Aurich as an expert. It is unclear whether each physician
proposes to opine only that he or she personally was not
deliberately indifferent, or whether each intends to opine
that none of them were deliberately
 The Order adopted in part and declined
to adopt in part the Magistrate Judge's Report and
Recommendation on several topics. [Dkt. # 127]. The other
parts of the Order are not at issue.
 Defendants also argue that
Gallagher's motion was limited to the summary judgment
context, and that even granting the motion to strike would
not preclude that testimony at trial. The Magistrate's
Recommendation was so limited, but it recognized that this
Court would ultimately address the opinions'
admissibility. [Dkt # 127 at 7]. Gallagher effectively argues
that is a distinction without a meaningful difference, and
the context of the underlying briefing suggests that
Gallagher's argument was not so limited. In any event,
the admissibility of the ...