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A party that wants to rely upon the testimony of a treating physician to support a personal injury case in federal court should be sure to consult the Federal Rules of Civil Procedure. Different rules will apply depending on the scope of the treating physician’s testimony.

Rule 26 sets two standards for expert disclosures. 26(a)(2)(C) sets a “lower standard” that typically applies to treating physicians. Under this standard, the treating physician may provide testimony beyond his personal knowledge, but he must base his opinions on “facts or data obtained or observed in the course of the sequence of events giving rise to the litigation.” LaShip, LLC v. Hayward Baker, Inc., 296 F.R.D. 475 (E.D.La. Nov. 13, 2013). Further, the physician may be permitted to testify regarding causation and future medical treatment if these opinions come from the doctor’s actual treatment of the party.

Under this “lower standard,” the party seeking to offer the physician’s testimony, usually the plaintiff, must timely disclose: (1) the subject matter on which the treating physician is expected to present evidence; and (2) a summary of the facts and opinions to which he is expected to testify. Importantly, production of a plaintiff’s medical records alone is not sufficient – the plaintiff must actually provide a summary of the physician’s opinions. See e.g. Williams v. State, 2015 WL 5438596, at *4 (M.D. La. Sept. 14, 2015). If the party fails to timely disclose this information, he runs a substantial risk of having his testimony excluded from trial.

Where the physician’s testimony goes beyond the medical records or his treatment of the plaintiff, a “higher standard” can apply to the physician’s testimony. Rule 26(a)(2)(B). The physician may be required to produce a complete expert report to disclose: (1) a complete statement of all opinions the witness will express and the basis and reasons for them; (2) the facts or data considered by the witness in forming them; (3) any exhibits that will be used to summarize or support them; (4) the witness’s qualifications, including a list of publications authored in the last 4 years; (5) a list of all cases the expert has been used as an expert at trial or in depositions; and (6) a statement of the compensation the witness is to be paid for his work and testimony.

Application of this “higher standard” often turns on the frequency and recency of the physician’s treatment. Courts are also more likely to apply the higher standard when the physician’s opinions are based general scientific knowledge of the plaintiff’s condition rather than his actual treatment of the plaintiff.

John Grinton, a Keogh Cox associate whose practice areas include commercial and construction litigation. When he is not practicing law, John spends most of his time with his wife and son, and their two dogs.

The Jones Act is a federal statute which enables maritime workers that are considered “seaman” to sue their employers for any injuries sustained while on the job. Sanchez v. Smart Fabricators of Texas, L.L.C., No, 19-20506, ____F.3d____, (2021). Because Congress never defined the term, courts have struggled to determine which maritime workers are “seaman.” The United States Fifth Circuit Court of Appeals is no stranger to this struggle. The Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) established a two factor test to determine seaman status. The first prong asked whether the plaintiff’s work contributed to the function of a vessel or fleet of vessels. The worker in Sanchez satisfied this first prong. The “second prong” asked whether a worker has a connection to a vessel or fleet of vessels that is substantial in terms of duration and nature. The recent decision in Sanchez helps to gauge when a worker’s connection to a vessel will be regarded as substantial in its nature.

Gabriel Sanchez was employed by Smart Fabricators of Texas, LLC (“SmartFab”) as a land-based welder. Sanchez worked for SmartFab on two jack-up barges owned by SmartFab’s customer, Enterprise Offshore Drilling LLC. On August 8, 2018, while working on the deck of one of the jack-up barges, Sanchez fell and sustained injuries. He filed suit in state court. SmartFab removed the case to federal court.

Sanchez moved to remand the suit to state court, citing to his seaman status under the Jones Act. The district court denied Sanchez’s motion to remand. It also granted SmartFab’s motion for summary judgment on the grounds that Sanchez was not a seaman and thus was not covered under the Jones Act. On appeal, a Fifth Circuit panel initially held that Sanchez satisfied the requirements of the seaman status test. In an en banc opinion, this analysis was called into question.

The full Fifth Circuit explored a trilogy of Supreme Court’s cases it found “enormously helpful” in giving meaning to the term seaman: (1) McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991), (2) Chandris, Inc. v. Latsis, and (3) Harbor Tug and Barge Co. v. Papai, 520 U.S. 548 (1997). After reviewing these cases, the Fifth Circuit concluded that simply asking whether a worker is exposed to the “perils of the sea” is not enough to resolve the nature element. Under Sanchez, courts must also consider the following:

(1) Does the worker owe his allegiance to the vessel, rather than simply to a shoreside employer;

(2) Is the work sea-based or involve seagoing activity; and

(3) (a) is the worker’s assignment to a vessel limited to performance of a discrete task after which the worker’s connection to the vessel ends, or

(3) (b) does the worker’s assignment include sailing with the vessel from port to port or location to location?

The established facts in Sanchez showed that the plaintiff’s work was not sea-based. He had no permanent connection to any vessel. Much of his work involved activities when the rig was “jacked-up” and therefore not in navigation. Following its redefined analysis, Sanchez held that seaman status was not present because the nature of the plaintiff’s work did not reflect a substantial connection to a vessel.

Recently, the Louisiana Supreme Court issued a significant ruling in a class action case handled by Keogh Cox partners Chris Jones and Nancy Gilbert. The case involved tax credits for solar panels. The Court’s ruling overturned a lower court decision that held an Act of the Legislature unconstitutional. After the plaintiffs’ Application for Rehearing was denied, the Court’s decision is now final.

In Ulrich, et al. v. Kimberly Robinson, Secretary of the Louisiana Department of Revenue, 2018-0534 (La. 3/26/19), 2019 WL 1395316, the class action plaintiffs were persons who purchased and installed residential solar panel systems in their homes. When they claimed the solar electric system tax credits on their 2015 state tax returns pursuant to La. R.S. 47:6030, the tax credits were denied by the Louisiana Department of Revenue, based on Act 131 of the 2015 legislative session. Act 131 capped the maximum amount of solar panel tax credits to be granted by the Department of Revenue, and the plaintiffs’ claims were made after the cap was exhausted.

When their claims for the tax credits were denied, plaintiffs filed a declaratory judgment action seeking to declare Act 131 unconstitutional. During the pendency of the suit in the district court, the Louisiana Legislature enacted Act 413 which provided additional funding for solar tax credits. Under Act 131, all taxpayers whose solar panel tax credit claims were previously denied would receive the entirety of their tax credits over installments. The district court declared Act 131 unconstitutional and concluded that Act 413 did not moot the controversy.

Because the district court declared Act 131 unconstitutional, the Department directly appealed the decision to the Louisiana Supreme Court. Oral arguments occurred in October of 2018. In the Court’s recent opinion, it concluded that Act 413 mooted the controversy. According to the Court, the plaintiffs no longer maintained a “justiciable controversy” because Act 413 provided for the payment of the entirety of the previously denied tax credits. Accordingly, the Court overruled the district court’s judgment that declared Act 131 unconstitutional. Plaintiffs filed an Application for Rehearing and that request was recently denied, making this decision final.

Chris Jones is a partner with Keogh Cox in Baton Rouge, LA. He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country. He is a life-long resident of Baton Rouge, where he lives with his wife and four children.