In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:
Until the law on the issue settles there are some practical steps counsel should take to address hybrid witnesses:
(1) Make sure that the witness really is a “hybrid” witness. The fact that the witness happens to be a treating physician, for instance, might not be the end of the analysis. See, e.g., Kirkham v. Societe Air France, 236 F.R.D. 9, 12-13 (D.D.C. 2006) (noting that a treating physician may be “retained or specially employed” under Rule 26 and thus an expert from whom a report is required if, among other things, they base opinions on something other than their own examination of the party such as the medical records of another physician or if they are compensated or expect compensation for their time preparing to testify);
(2) Know the court’s local rules. Some courts reduce the uncertainty on the issue by addressing certain hybrid witness questions via local rules. See, e.g., N.D. Miss. and S.D. Miss. Uniform R. 26.1(A)(2)(d) (“A party shall designate treating physicians as experts pursuant to this rule, but is only required to provide the facts known and opinions held by the treating physician(s) and a summary of the grounds therefor.”);
(3) Determine whether the judge handling the matter has an individualized “chamber” rule or standing order providing guidance with respect to hybrid witnesses. E.g., Sowell v. Burlington Northern and Santa Fe Ry. Co., No. 03 C 3923, 2004 WL 2812090 at *1 (N.D. Ill. Dec. 7, 2004) (“This court maintains a Standing Order regarding the disclosure of testimony by treating physicians, which provides in relevant part: . . . Testimony by a treating physician as to causation or prognosis or future impact of the condition or injury is subject to the report requirement of Rule 26(a)(2)(B).” (emphasis in original)); and
(4) If issues concerning hybrid witnesses are evident at the beginning of the case, consider addressing them at the pre-trial conference stage of the litigation.