The rules of evidence in most jurisdictions require a party who wants to call an expert witness to notify the other party of the expert’s name. The rules may also require advance disclosure of the expert’s qualifications, opinions, prior testimony, and publications. In many jurisdictions, the expert must state his or her opinions in a written report that is disclosed to adverse parties prior to trial.

Jurisdictions that require an expert to prepare a report often make an exception for treating physicians who will only be asked to testify about their diagnosis and the treatment they rendered to a patient. In those cases, medical records serve as an adequate substitute for a report. In addition, treating physicians are different from retained experts, who usually expect to write a report. Treating physicians are busy with their patients and often balk at being asked to prepare a report that merely reiterates information contained in medical records.

New Jersey’s discovery rules permit a party to ask an opposing party to produce a report prepared by that party’s expert. The report must include a complete statement of the expert’s opinions and the basis for those opinions, including the facts and data upon which the expert relied. The rules make no explicit exception for treating physicians.

The New Jersey Supreme Court was recently asked whether a plaintiff who sued for disability discrimination was required to produce an expert report when she relied on the testimony of her treating physician to establish that she had a disability. The trial court excluded the treating physician’s testimony because no report had been prepared for pretrial disclosure. The supreme court concluded that the treating physician’s proposed testimony about his patient’s disability did not trigger the obligation to write a report.

Facts of the Case

Patricia Delvecchio was employed by the Township of Bridgewater as a police dispatcher. Dispatchers generally work three shifts on a rotating basis.

Delvecchio suffered from inflammatory bowel syndrome (IBS), a condition that worsened when she worked the midnight shift. Delvecchio notified the Township that she suffered from IBS and asked for an accommodation of her condition by assigning her to morning or afternoon shifts. She supported that request with notes from her gastroenterologist. The notes stated that Delvecchio’s IBS symptoms were under control when she worked regular daytime hours, but were exacerbated by assignments to the midnight shift.

After one year of assigning Delvecchio to the afternoon shift, the Township decided it was too burdensome to other dispatchers to relieve Delvecchio of all midnight shift assignments. The other dispatchers, however, cooperated in allowing Delvecchio to work daytime shifts. After additional intervention by Delvecchio’s gastroenterologist, the Township told Delvecchio that it would assign her to afternoon shifts when they were available, but insisted that she work occasional midnight shifts. It did so despite the gastroenterologist’s insistence that it was medically necessary for Delvecchio to avoid the midnight shift.

After Delvecchio repeatedly declined assignments to the midnight shift, the Township asked her to resign. When she refused, the Township made her a records clerk and reduced her pay. It later terminated her employment, citing excessive absenteeism.

Delvecchio’s Lawsuit

Delvecchio sued the Township, alleging that it violated New Jersey’s Law Against Discrimination by repeatedly assigning her to the midnight shift. Delveccio contended that IBS constitutes a disability under New Jersey law and that the Township had a duty to accommodate that condition by changing her work schedule.

Pursuant to New Jersey’s discovery rules, Delvecchio disclosed that her treating gastroenterologist would testify that Delvecchio had been diagnosed with IBS and that he wrote notes to the Township explaining that condition and the need for a work schedule change. However, Delvecchio produced no report from the gastroenterologist.

The judge ruled that New Jersey law does not allow a treating physician to testify about a plaintiff’s diagnosis or the impact of a plaintiff’s work schedule on her condition unless the physician has been designated as an expert witness. The judge allowed the gastroenterologist to testify that he was treating Delvecchio for IBS, but would not allow the doctor to explain IBS to the jury.

The court admitted the gastroenterologist’s notes into evidence but instructed the jury that they were received as evidence that Delvecchio requested an accommodation, not as evidence that she suffered from a disability. Having heard no physician’s testimony in support of the claim that Delvecchio was disabled, the jury found in favor of the Township. Delvecchio appealed.

Supreme Court’s Decision

New Jersey’s law against disability discrimination prohibits employers from discriminating against an employee with a disability “unless the nature and extent of the disability reasonably precludes the performance of the particular employment.” A disability under New Jersey law includes an infirmity that prevents “the normal exercise of any bodily function.”

A threshold question in a disability discrimination case is whether the employee is disabled. On appeal, the Township argued that evidence of a disability must be based on “a retained expert witness,” not on testimony from a treating physician.

The Township relied upon an earlier case in which the New Jersey Supreme Court held that “expert medical evidence” is required to prove the existence of a disability unless the disability is apparent. Seizing on the word “expert,” the Township argued that Delvecchio failed to designate her treating physician as an expert and failed to produce the report that New Jersey law requires experts to prepare. The Township claimed that a treating physician who is not retained as an expert cannot testify that a patient is disabled.

The supreme court disagreed. The court relied on a line of New Jersey cases that allow treating physicians “to offer medical testimony regarding the diagnosis and treatment of their patients” as a lay witness. Those cases regard treating physicians as giving testimony about medical facts, not medical opinions.

Recognizing that the attempt to distinguish a medical fact from a medical opinion creates “an artificial distinction,” the court ruled that treating physicians may always give relevant testimony about a patient’s diagnosis and treatment, even if that testimony might be characterized as an expert opinion. If the doctor’s opinion testimony extends beyond diagnosis and treatment, however, the doctor must be designated as an expert and must furnish a report before the testimony will be admissible.

The supreme court ruled that the trial court should have allowed the gastroenterologist to testify about Delvecchio’s “IBS diagnosis, the impact of IBS on [her] everyday life, and the steps that [he] recommended to alleviate [her] symptoms.” Since there was no suggestion that Delvecchio’s attorney intended to ask the doctor “to opine on global questions beyond the scope of his role as plaintiff’s treating physician,” Delvecchio was not required to designate the gastroenterologist as an expert. The court accordingly granted Delvecchio a new trial.