Are Utah treating physicians exempt from expert report requirements? Drew v. Lee Explained

In a significant ruling for Utah civil practitioners, the Utah Supreme Court in Drew v. Lee clarified the expert disclosure requirements under Utah Rule of Civil Procedure 26(a)(3)(B), establishing that treating physicians are exempt from filing written expert reports even when testifying about causation and prognosis.

Background and Facts

Richard Drew was injured in a motorcycle accident and sued the other driver, Tonia Lee. Drew identified his treating physicians as expert witnesses under Rule 26(a)(3)(A) but did not produce written expert reports as required by Rule 26(a)(3)(B). Lee moved to exclude the physicians’ testimony on causation and prognosis, arguing that when treating physicians testify beyond mere diagnosis and treatment, they become “retained experts” requiring written reports. The district court agreed and excluded the testimony, relying on the court of appeals decision in Pete v. Youngblood.

Key Legal Issues

The central question was whether Utah Rule of Civil Procedure 26(a)(3)(B) requires written expert reports from treating physicians who plan to testify about matters such as causation and prognosis. The rule requires written reports “with respect to a witness who is retained or specially employed to provide expert testimony,” but does not explicitly address treating physicians.

Court’s Analysis and Holding

The Utah Supreme Court adopted a status-based approach rather than a substance-based test. The court held that Rule 26(a)(3)(B) creates “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.” Treating physicians fall into the latter category because they are visited for medical treatment, not specifically hired for litigation purposes. The court rejected the federal majority approach that focuses on the content of testimony, finding it leads to “inconsistent, unpredictable, costly, and time consuming” results.

Practice Implications

This decision provides a clear bright-line rule for Utah practitioners: treating physicians need only be identified under Rule 26(a)(3)(A) and are exempt from the written report requirement of Rule 26(a)(3)(B), regardless of whether they testify about causation or prognosis. However, practitioners should be prepared to distinguish genuine treating physicians from retained experts using factors such as: why the party visited the physician, proximity to litigation, whether the attorney arranged the visit, how the visit was coded for insurance purposes, and the physician’s history as an expert witness.