Drew v. Lee

This opinion is subject to revision before final
publication in the Pacific Reporter
2011 UT 15
IN THE
SUPREME COURT OF THE STATE OF U TAH
____________
R. ALAN DREW,
Plaintiff and Appellant,
v.
T ONIA MANN LEE ,
Defendant and Appellee.
____________
No. 20080798
Filed March 15, 2011
___________
Third District, Salt Lake
The Honorable Robin W. Reese
No. 060914423
____________
Attorneys:
Roger W. Griffin, Sandy, for plaintiff
Peter H. Christensen, Ryan P. Atkinson, Salt Lake City,
for defendant
Ryan M. Springer, Salt Lake City, for amicus curiae
Utah Association for Justice
_____________
JUSTICE NEHRING, opinion of the Court:
INTRODUCTION
¶1 	In this appeal, we determine whether Utah Rule of Civil
Procedure 26(a)(3)(B) requires parties to file a written expert report
from treating physicians who plan to testify at trial. We hold that
rule 26(a)(3)(B) requires parties to produce a written report only
from experts who are “retained or specially employed” to testify and
that treating physicians do not fall into this category. We therefore
reverse the district court’s decision and remand for further proceed-
ings consistent with this opinion.

D REW v. LEE
Opinion of the Court
BACKGROUND
¶2 	In October 2005, Richard Drew and Tonia Lee were involved
in an automobile accident. 	During the collision, Mr. Drew was
thrown from his motorcycle and landed on his head. 	He was
immediately rushed to the emergency room at Alta View Hospital
for treatment. As time passed, Mr. Drew continued to experience
pain and discomfort from the accident and visited a handful of
medical providers for further care.
¶3 	In August 2006, Mr. Drew filed a complaint against Ms. Lee
for damages related to the collision. 	As part of the discovery
process, 	Mr. 	Drew 	identified 	his 	treating 	medical 	providers
(“treating physicians”) as required by Utah Rule of Civil Procedure
26(a)(3)(A) as expert witnesses who may be called to testify at trial. 1
Although Mr. Drew identified his experts, he did not produce any
written expert reports as required by Utah Rule of Civil Procedure
26(a)(3)(B).2
¶4 	In response, Ms. Lee filed a motion in limine to exclude the
expert testimony. Ms. Lee objected to the proposed expert testimony
because Mr. Drew’s treating physicians planned to opine on
causation and prognosis–issues Ms. Lee considered to be beyond the
scope of care and treatment. 	According to Ms. Lee, if Mr. Drew
wanted to move forward with this testimony, he was required to
produce and provide written expert reports as required by Utah
Rule of Civil Procedure 26(a)(3)(B).
¶5 	The district court granted Ms. Lee’s motion in limine. The
district court concluded that because Mr. Drew’s treating physicians
intended to testify about the cause of Mr. Drew’s injuries and his
1 U TAH R. C IV . P. 26(a)(3)(A) (“A party shall disclose to other
parties the identity of any person who may be used at trial to present
evidence under [r]ules 702, 703, or 705 of the Utah Rules of Evi-
dence.”).
2 U TAH R. C IV . P. 26(a)(3)(B) (“Unless otherwise stipulated by the
parties or ordered by the court, [a party’s expert] disclosure shall,
with respect to a witness who is retained or specially employed to provide
expert testimony in the case[,] . . . be accompanied by a written report
prepared and signed by the witness or party.” (emphasis added)).
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future prognosis, Mr. Drew was required to provide expert reports
under rule 26(a)(3)(B). Relying on Pete v. Youngblood,3 the district
court reasoned that if a treating physician’s testimony goes beyond
the scope of mere diagnosis and treatment of the patient, then the
physician becomes a “retained expert” and the party must comply
with both subsection (a)(3)(A) by identifying the expert, and with
subsection (a)(3)(B) by filing an expert report. Because Mr. Drew
failed to produce written expert reports, the district court held that
his treating physicians could not testify as to causation and future
prognosis at trial.
¶6 	Mr. Drew filed this interlocutory appeal, which we granted.
On appeal, Mr. Drew argues that treating physicians are exempt
from the written report requirement in rule 26(a)(3)(B) because
treating physicians are not “retained” experts or “specially em-
ployed” by parties to testify at trial.4 We have jurisdiction under
Utah Code section 78A-3-102(3)(j) (Supp. 2010).
STANDARD OF REVIEW
¶7 	“[T]he interpretation of a rule of procedure is a question of
law that we review for correctness.”5
ANALYSIS
¶8 	Utah Rule of Civil Procedure 26 outlines the requirements
for parties who seek to admit expert testimony at trial. Under rule
26(a)(3)(A), “[a] party shall disclose to other parties the identity of
any person who may be used at trial to present evidence under
[r]ules 702, 703, or 705 of the Utah Rules of Evidence.”6 Rules 702,
703, and 705 “relate to testimony by experts, the bases of opinion
testimony by experts, and the disclosure of facts or data underlying
3 2006 UT App 303, 141 P.3d 629.
4 See U TAH R. C IV . P. 26(a)(3)(B).
5 State v. Rodrigues, 2009 UT 62, ¶ 11, 218 P.3d 610 (alteration in
original) (internal quotation marks omitted).
6 U TAH R. C IV . P. (26)(a)(3)(A).
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expert opinion, respectively.” 7 Utah Rule of Civil Procedure
26(a)(3)(B) establishes an additional requirement for some types of
experts. Under this rule:
Unless otherwise stipulated by the parties or ordered
by the court, [a party’s expert] disclosure shall, with
respect to a witness who is retained or specially employed to
provide expert testimony in the case[,] . . . be accompanied
by a written report prepared and signed by the wit-
ness or party.8
¶9 	In this case, we must determine what it means to be
“retained or specially employed to provide expert testimony” such
that the written report requirement in rule 26(a)(3)(B) applies.
¶10 Ms. Lee asks us to uphold the district court’s decision
because she claims that under rule 26(a)(3)(B), treating physicians
who intend to testify on matters beyond personal observations made
during the course of the patient’s care and treatment, must file
expert reports. In support of her argument, Ms. Lee relies heavily on
the court of appeals’ decision in Pete v. Youngblood. 9 Ms. Lee argues
that under Youngblood, district courts should focus on the substance
of the expert testimony rather than the status of the expert as a
7 Pete v. Youngblood, 2006 UT App 303, ¶ 12 n.4, 141 P.3d 629; see
also U TAH R. EVID . 702, 703, 705.
8 U TAH R. C IV . P. 26(a)(3)(B) (emphasis added).
The report shall contain the subject matter on which the
expert is expected to testify; the substance of the facts
and opinions to which the expert is expected to testify;
a summary of the grounds for each opinion; the qualifi-
cations of the witness, including a list of all publications
authored by the witness within the preceding ten years;
the compensation to be paid for the study and testi-
mony; and a list of any other cases in which the witness
has testified as an expert at trial or by deposition within
the preceding four years. Id.
9 2006 UT App 303.
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Opinion of the Court
treating physician to determine whether the expert was “retained or
specially employed to provide expert testimony” at trial.
¶11 But according to Mr. Drew, rule 26(a)(3)(B) does not require
him to produce written expert reports from his treating physicians
because Mr. Drew did not “retain[] or specially employ[]” them to
testify as experts at trial. Rather, Mr. Drew argues that because his
experts are treating physicians, rule 26(a)(3)(B) is inapplicable and that
the only applicable rule is 26(a)(3)(A), which simply requires him to
identify who his experts will be. Mr. Drew argues that this approach
is most consistent with the plain language of rule 26 and the court of
appeals’ ultimate holding in Youngblood. 	Because Mr. Drew
identified his experts under rule 26(a)(3)(A), he argues the district
court erred when it granted Ms. Lee’s motion in limine.
¶12 We agree with Mr. Drew. We begin by briefly discussing
Youngblood, the central case the district court relied on in its decision.
We then turn to the plain language and purpose of rule 26 to
ultimately resolve the issue presented to us on appeal.
I. PETE V. YOUNGBLOOD DOES NOT REQUIRE PARTIES
TO PRODUCE EXPERT REPORTS FROM TREATING
PHYSICIANS NOT “SPECIALLY RETAINED” OR
“EMPLOYED TO TESTIFY” AT TRIAL
¶13 On appeal, both parties spend a great deal of time discussing
portions of Pete v. Youngblood.10 In Youngblood, a patient sued her
doctor for medical malpractice because the doctor allegedly left
surgical gauze packed in the patient’s body.11 “During the discovery
phase, [the patient] designated several of her treating physicians as
individuals likely to have discoverable information.”12 The patient
did not, however, “designate any expert witnesses by the court-
imposed deadline” as required by Utah Rule of Civil Procedure
10 2006 UT App 303, 141 P.3d 629.
11 Id. ¶ 4
12 Id. ¶ 5.
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26(a)(3)(A).13 The doctor moved for summary judgment claiming
that the patient had “failed to state a prima facie case of medical
malpractice because she had not designated an expert to opine as to
the standard of care and breach.”14 The patient responded with an
affidavit from one of her treating physicians that included an
opinion on the standard of care.15 But because the patient had not
designated her treating physician as an expert, the district court
struck the affidavit and granted summary judgment in favor of the
doctor.16 The patient appealed.
¶14 The court of appeals affirmed the district court’s decision
because it concluded that if a treating physician provides expert
evidence under Utah Rules of Evidence 702, 703, or 705, the physi-
cian must be identified as an expert under Utah Rule of Civil
Procedure 26(a)(3)(A).17 The court of appeals went on to state that
“to determine if an expert need be identified before trial, [r]ule 26
focuses not on the status of the witness, but rather on the substance
of the testimony.”18
¶15 While both parties spend a great deal of time discussing the
scope of Youngblood and how the district court applied it to this case,
we conclude that Youngblood does not answer the question before us.
Although dicta in Youngblood can be extracted to support both
parties’ positions, the court of appeals’ analysis was limited to
whether rule 26(a)(3)(A) requires a party to identify its treating
physicians as experts. 	It did not resolve whether rule 26(a)(3)(B)
13 Id.
14 Id. ¶ 6.
15 Id.
16 Id.
17 Id. ¶¶ 12, 36.
18 Id. ¶ 14 (alteration in original) (quoting Patel v. Gayes, 984 F.2d
214, 217-18 (7th Cir. 1993)).
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requires parties to produce treating physician expert reports.19
Because we conclude that Youngblood does not assist in our resolu-
tion of the expert report question, we turn to our traditional plain
language analysis and other interpretive tools to resolve this issue.
II. RULE 26(a)(3)(B) DOES NOT REQUIRE PARTIES TO
DISCLOSE WRITTEN EXPERT REPORTS FROM TREATING
PHYSICIANS
¶16 When we interpret a rule of civil procedure, we look to the
express language of the rule and to cases interpreting it. 20 Like
statutes, we read each term in the rule “according to its ordinary and
accepted meaning.”21 “Because the Utah Rules of Civil Procedure
are patterned after the Federal Rules of Civil Procedure, where there
is little Utah law interpreting a specific rule, we may [also] look to
the Federal Rules of Civil Procedure for guidance.” 22 When we
conduct this analysis, “it is most important that the rules be
understood, and applied, with clarity and consistency, and that the
19 Id. ¶ 11 n.3 (“Because the trial court’s decision to strike the
[treating physician’s] affidavit was based solely on the failure to
designate [him] as an expert under rule 26(a)(3)(A), we do not
address whether [the treating physician] was required to file an
expert report under rule 26(a)(3)(B).”).
20 See First Equity Fed., Inc. v. Phillips Dev., LC, 2002 UT 56, ¶ 11,
52 P.3d 1137; Arbogast Family Trust v. River Crossings, LLC, 2010 UT
40, ¶ 16, 238 P.3d 1035.
21 State v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780 (internal quota-
tion marks omitted).
22 Bichler v. DEI Sys., Inc., 2009 UT 63, ¶ 24 n.2, 220 P.3d 1203; see
also Tucker v. State Farm Mut. Auto Ins. Co., 2002 UT 54, ¶ 7 n.2, 53
P.3d 947 (“Interpretations of the Federal Rules of Civil Procedure are
persuasive where the Utah Rules of Civil Procedure are ‘substan-
tially similar’ to the federal rules.”).
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defendant, the court, the state, and others be able to determine the
meaning of the rule.”23
¶17 We begin by examining the plain language of rule 26. 24 Rule
26(a)(3)(B) provides that a party’s expert disclosure shall, “with
respect to a witness who is retained or specially employed to provide expert
testimony in the case[,] . . . be accompanied by a written report.” 25
This rule specifically “contemplates two different classes of experts:
those retained or specially employed to give testimony in the case,
and other witnesses who may qualify as [experts] but are not
retained or specially employed” to testify at trial. 26
¶18 Because written reports are required only of “retained or
specially employed” experts, it is critical to explore the meaning of
these terms. 	Traditionally, to “retain” means “to keep in one’s
service.”27 Similarly, “employ” means “to hire,” 28 usually “in
exchange for financial compensation.”29 The word “specially”
means “arranged, issued, or appropriated to a particular service or
23 Arbogast Family Trust, 2010 UT 40, ¶ 16 (alterations, emphasis,
and internal quotations marks omitted).
24 State v. Ison, 2006 UT 26, ¶ 16, 135 P.3d 864 (Because “[w]e
interpret [court] rules using the same time-honored methods we
employ to draw meaning from writings generally,” we “look first to
the plain meaning of the text of [the rule] for guidance.”).
25 U TAH R. C IV . P. 26(a)(3)(B) (emphasis added).
26 Piper v. Harnischfeger Corp., 170 F.R.D. 173, 174 (D. Nev. 1997).
27 Webster’s II New College Dictionary 946 (1995); see also Kirkham
v. Societe Air Fr., 236 F.R.D. 9, 12 (D.D.C. 2006) (“‘Retained’ ordi-
narily implies some consideration, a payment or reward of some
kind, for services rendered.”).
28 Black’s Law Dictionary 602 (9th ed. 2009).
29 Webster’s II New College Dictionary 369.
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occasion.”30 Taken together, these definitions suggest that a
“retained or specially employed” expert is a person who a party
hires and pays to express a particular expert opinion for the
purposes of litigation.
¶19 While the plain language appears to be relatively straightfor-
ward, its application is more challenging. Generally, all experts are
hired and compensated for their trial testimony, and thus there must
be some further way to distinguish “retained or specially employed”
experts from other experts who are not retained or specially
employed, but still testify at trial. 31 Because we have not considered
this question before, we turn to the similar federal rule for
guidance.32
¶20 Our examination of the expert report requirement of federal
rule 26 and cases interpreting it reveals “widely divergent views” on
the issue.33 The majority of jurisdictions apply what is commonly
known as the “substance-based” approach to the rule.34 This
30 Webster’s II New College Dictionary 1059.
31 Kirkham, 236 F.R.D. at 12 (noting that payment in exchange for
expert testimony is not dispositive because “professional standards
in some areas may permit treating physicians to be compensated for
time spent as a witness or at a deposition”).
32 Compare F ED . R. C IV . P. 26(a)(2)(B), with U TAH R. C IV . P. 26
(a)(3)(B). The only appreciable difference between the federal and
state rule is that, under the Utah rule, “an expert’s report need not
be written and signed by the expert” but instead “may be signed by
the witness or party.” UTAH R. C IV . P. 26 advisory committee’s note
on 1999 amendments. 	This is because both plaintiff and defense
attorneys “reported on the high cost of reports by experts, the
growth of non-practicing experts as a profession, and the need to
depose experts regardless of a written report.” Id.
33 Kirkham, 236 F.R.D. at 11.
34 See, e.g., Zurba v. United States, 202 F.R.D. 590, 591 (N.D. Ill.
2001) (“A treating physician is not considered a retained expert . . .
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method is often referred to as the substance-based model because it
focuses on the content or scope of the expert’s testimony—rather
than the status of the individual as a treating physician—in order to
assess whether the expert report requirement applies.35 Under this
approach, a trial judge must evaluate the proposed testimony on a
case-by-case basis to determine whether the physician’s opinion is
based on the care and treatment of the patient or if it was formed
from outside sources of information.36 If this inquiry reveals that the
treating physician will testify to matters learned outside the scope
of treatment, the physician must file an expert report under rule 26.37
34 (...continued)
and thus need not submit a report, if his testimony is based on
observations made during the course of treatment.”); Sprague v.
Liberty Mut. Ins. Co., 177 F.R.D. 78, 81 (D.N.H. 1998) (“The majority
of other courts in the country have concluded that [expert] reports
are not required as a prerequisite to a treating physician expressing
opinions as to causation, diagnosis, prognosis and extent of disabil-
ity where they are based on the treatment.”); Salas v. United States,
165 F.R.D. 31, 33 (W.D.N.Y. 1995) (“The relevant question is whether
these treating physicians acquired their opinions as to the cause of
the plaintiff’s injuries directly through their treatment of the
plaintiff. 	If so, then they must be treated as treating physicians“)
(citation omitted).
35 See, e.g., Gass v. Marriott Hotel Servs., 501 F. Supp. 2d 1011, 1016-
17 (W.D. Mich. 2007), rev’d in part on other grounds, 558 F.3d 419 (6th
Cir. 2009).
36 See Kirkham, 236 F.R.D. at 13 (“[A] treating physician who bases
his opinion on the medical records of another physician, not just on
his own examination of the patient, is required to prepare an expert
report because such review indicates he is being retained in
connection with the litigation.”); Zurba, 202 F.R.D. at 592 (“[I]t is only
when the treating physician gives opinions beyond the scope of his
own observation and treatment that he is considered a ‘retained’
expert for purposes of [rule 26].”).
37 6-26 James Wm. Moore et. al, MOORE ’ S FEDERAL P RACTICE
§ 26.23[2][b][iii] (2010).
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¶21 While a majority of jurisdictions follow this substance-based
approach to the rule, there is vast disagreement among them
regarding what information falls within the scope of care and
treatment of a patient. 	Most jurisdictions have concluded that
causation and prognosis are inseparable from a doctor’s care and
treatment of a patient, and thus a physician is not required to file an
expert report to opine on these issues.38 Other jurisdictions consider
opinions on causation to always fall outside the scope of treatment,
and thus require a party to file an expert report. 39 And some jurisdic
38 See, e.g., Fielden v. CSX Transp., Inc., 482 F.3d 866, 869-70 (6th
Cir. 2007) (“Under a straightforward reading of the rule and its
advisory note, [the plaintiff] did not need to file an expert report
from [his treating physician]. This conclusion is supported by the
obvious fact that doctors may need to determine the cause of an
injury in order to treat it. Determining causation may therefore be
an integral part of ‘treating’ a patient.”); Martin v. CSX Transp., Inc.,
215 F.R.D. 554, 557 (S.D. Ind. 2003) (“It is within the normal range of
duties for a health care provider to develop opinions regarding
causation and prognosis during the ordinary course of an examina-
tion. To assume otherwise is a limiting perspective, which narrows
the role of a treating physician. 	Instead, to properly treat and
diagnose a patient, the doctor needs to understand the cause of a
patient’s injuries.”); McCloughan v. City of Springfield, 208 F.R.D. 236,
242 (C.D. Ill. 2002) (stating treating physicians may offer opinion
testimony on causation, diagnosis, and prognosis without providing
an expert report); see also Nesselbush v. Lockport Energy Assocs., L.P.,
647 N.Y.S.2d 436, 436-37 (N.Y. Sup. Ct. 1996) (same).
39 See, e.g., Kondziolka v. Burlington N. & Santa Fe Ry. Co., No. 99 C
2148, 2000 U.S. Dist. LEXIS 13771, at *4-5 (N.D. Ill. Sept. 14, 2000)
(noting opinions about causation go beyond personal observations
and treatment and thus require an expert report); Zarecki v. Nat’l R.R.
Passenger Corp., 914 F. Supp. 1566, 1573 (N.D. Ill. 1996) (noting that
a physician’s opinion about causation and forseeability was not
derived solely from treatment or personal observations); Widhelm v.
Wal-Mart Stores, Inc., 162 F.R.D. 591, 594 (D. Neb. 1995) (finding that
the plaintiff “attempt[ed] to circumvent her duty to identify experts
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tions will allow causation and prognosis testimony without the
filing of an expert report on a case-by-case basis, but only if a
determination is made that the opinion was “not acquired or
developed in anticipation of litigation or for trial.” 40
¶22 Although the substance-based approach has its advantages,
“it is not always easy to determine when a treating physician, will,
by virtue of the scope of the opinions offered, cross the line into
becoming a specially retained expert whose report must be pro-
vided.” 41 This case-by-case examination is subjective and probing
and can easily lead to inconsistent results. While this approach is
laudable in its goal to fairly regulate the content of expert testimony,
its practical application is often inconsistent, unpredictable, costly,
and time consuming.
¶23 Because of the practical problems and inconsistent results
that stem from the majority approach, we adopt an alternative
method to the expert report requirements of rule 26. Rather than
choosing to focus on what the expert will say, we will instead deter-
mine which experts are required to file an expert report by separat-
ing physician experts into two categories: (1) physicians the party
visited for purposes of medical treatment (“treating physicians”)
and (2) other physicians who are “specially retained or employed”
for purposes of litigation. In making this determination, we do not
look to the substance, sources, or scope of the physician’s proposed
testimony; we simply look to the status of the individual as a
treating physician. In most cases, this “status-based” distinction will
be easy to make and uncontroversial.
¶24 The view that treating physicians can be separated into a
different class than retained experts is also supported by the
advisory committee’s notes to the federal rule:
39 (...continued)
and provide their reports by expanding the testimony of the treating
physicians” to address causation).
40 See, e.g., Brown v. Best Foods, 169 F.R.D. 385, 387 (N.D. Ala. 1996)
(internal quotation marks omitted).
41 Moore et al., supra note 37, § 26.23[2][b][iii].
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The requirement of a written report . . . applies only to
those experts who are retained or specially employed
to provide such testimony in the case or whose duties
as an employee of a party regularly involve the giving
of such testimony. A treating physician, for example,
can be deposed or called to testify at trial without any
requirement for a written report.42
¶25 Notably, the Advisory Committee used “treating physi-
cians” as the quintessential example of expert witnesses who are
exempt from the written report requirement; the committee did not
suggest that a substantive analysis of the treating physician’s
testimony is necessary or relevant to the rule 26 discussion.
¶26 While in most cases a trial court will easily be able to
determine whether an individual is a treating physician or a retained
expert, we recognize that there may be some cases where the
distinction may be blurred. For example, a plaintiff may identify an
individual as a treating physician, but opposing counsel may point
to characteristics of the individual that suggest he or she is actually
a retained expert. In these cases, the party’s description of the expert
as a treating physician is not determinative and the district court
should focus on this non-exhaustive list of relevant questions to aid
in this inquiry:
1. 	Why did the party visit the physician?
2. 	How proximate to the litigation was the party’s
visit to the physician?
3. 	Was the party sent to the physician by his or her
attorney?
4. 	How did the physician’s office code the patient’s
visit for insurance purposes? And,
42 FED . R. C IV . P. 26(a)(2)(B) advisory committee’s note on 1993
amendments (emphasis added); see also Drennen v. United States, 375
F. App’x 299, 306-07 (4th Cir. 2010) (allowing treating physicians to
testify without filing an expert report is most consistent with the
advisory committee’s notes to federal rule 26(a)(2)(B)).
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5. 	Does the physician have a history of serving as a
retained expert witness at trial?
¶27 If the answers to these questions reveal that a party went to
the physician’s office for treatment, that expert is considered a
treating physician under the rule and no report is required. But if
the party went to the physician’s office for a purpose other than
treatment, the physician is likely a retained expert and the party
must produce an expert report.
¶28 Additional 	support 	for 	a 	focus 	on 	the 	status 	of 	the
physician—rather than the substance of the physician’s testi-
mony—can be found by examining the purpose of rule 26. 	The
purpose of filing an expert report under this rule is “to provide
opposing parties a reasonable opportunity to prepare for an effective
cross-examination” of the expert.43 This purpose is preserved
because parties are still required to identify their experts under rule
26(a)(3)(A), and opposing counsel can use a variety of discovery
tools to obtain all the information needed to question the expert at
trial. 44 For example, a party may depose a treating physician to
discover the content of the physician’s testimony and may subpoena
medical records to learn additional information about the physi-
cian’s treatment of the patient. 	These tools will eliminate unfair
surprise at trial and will likely lead to more information than could
be gleaned from an expert report.
¶29 Finally, we note that the status-based approach to rule
26(a)(3)(B), which we endorse today, will not encourage evasion of
the rule or result in broad, unsubstantiated testimony from treating
physicians. Practical considerations and court rules will forestall this
potential abuse. As a threshold matter, a treating physician must
meet the requirements to be an expert set out in Utah Rule of
Evidence 702 and may not testify to matters that are beyond the
expert’s own knowledge, skill, experience or other specialized
43 Martin, 215 F.R.D. at 557.
44 See id.
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training. 45 And of course, a treating physician’s testimony, like that
of any other witness, must be relevant to the case and is subject to
Utah Rules of Evidence 401 and 403. Finally, for those who fear that
counsel will abuse our interpretation of rule 26(a)(3)(B) and “seek to
cloak ‘retained’ experts in unretained expert guise,” rules 11 and 37
of the Utah Rules of Civil Procedure “should give them pause.” 46 If
a party fails to disclose a witness as required by rule 26(a), rule 37 of
the Utah Rules of Civil Procedure permits opposing parties to move
to compel discovery and seek appropriate sanctions, including the
exclusion of the witness. 47 Rule 11 allows the court to impose
sanctions on attorneys who make false representations to the court.48
The weighty consequences of skirting disclosure requirements
should be sufficient to caution parties and counsel against bad faith
noncompliance with this rule.
¶30 In summary, our approach to rule 26(a)(3)(B) is a status-
based inquiry. 	We conclude that this bright-line approach is the
most practical and fair interpretation of the rule and will lead to
consistent application and results. 	We thus conclude the district
court erred when it excluded the testimony of Mr. Drew’s treating
physician because Mr. Drew did not file expert reports under rule
26(a)(3)(B). 	Mr. Drew has, under rule 26(a)(3)(A), identified nine
medical professionals who he may choose to call to testify at trial.
According to Mr. Drew, each of these individuals has treated him for
injuries related to the car accident. To the extent the district court
determines that these individuals are actually treating physicians as
identified, it should allow the physicians to testify about treatment
at trial and let them offer an opinion about causation and prognosis
without filing an expert report. 	However, if the district court
determines that these individuals are not treating physicians, it
should proceed as necessary under the governing rules of civil
45 U TAH R. EVID . 702.
46 Sprague, 177 F.R.D. at 82; see also U TAH R. C IV . P. 11(c), 37
(providing for sanctions in the event attorneys or parties disregard
obligations under the Utah Rules of Civil Procedure).
47 See U TAH R. C IV . P. 37(a)(2)(A), (f).
48 Id. 11(c).
15

D REW v. LEE
Opinion of the Court
procedure. We therefore reverse the decision of the district court
and remand for the district court to reexamine this issue in light of
the rule articulated in this opinion.
CONCLUSION
¶31 The plain language of rule 26(a)(3)(B) does not require a
party offering treating physician testimony to file expert reports,
even if those physicians are testifying about causation and future
prognosis. We therefore reverse the district court’s decision to grant
Ms. Lee’s motion in limine and remand this case for proceedings
consistent with this opinion.
____________
¶32 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Judge Judkins concur in Justice Nehring’s
opinion.
¶33 Due to his retirement, Justice Wilkins did not participate
herein. District Court Judge Clint S. Judkins sat.
¶34 Justice Thomas R. Lee became a member of the Court on
July 19, 2010, after oral argument in this matter, and accordingly did
not participate.
16