## Facts

- Bach-Tuyet Chau was a passenger aboard a cruise ship owned by NCL (Bahamas) Ltd. (often referred to as Norwegian).
- Chau alleged she was injured onboard when she tripped over a signpost that had blown over.
- Chau sued Norwegian to recover for her injuries.
- Chau identified two treating physicians as expert witnesses: Dr. Huynh (her primary-care physician, who treated her for the injuries at issue) and Dr. Roberta Kasman (her orthopedic surgeon).
- Norwegian moved to preclude Dr. Huynh and Dr. Kasman from testifying as expert witnesses.

## Issues

1. Whether Chau’s treating physicians could testify as expert witnesses, and if so, what limits applied to opinion testimony formed during treatment versus opinions developed for litigation.
2. Whether the disclosures for the treating physicians’ proposed opinion testimony satisfied Federal Rule of Civil Procedure 26(a)(2).
3. Whether any proposed medical opinion testimony was subject to Federal Rule of Evidence 702’s reliability and helpfulness requirements.

## Decision

- The court ruled on Norwegian’s motion seeking to preclude the two treating physicians from giving expert-witness testimony.
- The court permitted testimony based on the doctors’ treatment of Chau, including their examinations, observations, diagnoses, and care rendered.
- The court limited any opinion testimony that went beyond what the physicians formed during the course of treatment, particularly where the opinions were not properly disclosed under Rule 26(a)(2) and/or were offered as specialized opinion testimony subject to Rule 702.

## Legal Principles

- Treating physicians may testify about facts learned and opinions formed during diagnosis and treatment, even though such testimony can include medical opinions.
- When a treating physician offers opinions that are not part of the treatment course (for example, opinions developed after the fact for the case), Rule 26(a)(2)’s disclosure requirements apply to that testimony.
- Regardless of whether the witness is a retained witness or a treating physician, medical opinion testimony offered as specialized opinion testimony must satisfy Federal Rule of Evidence 702.
- When disclosures are inadequate or a treating physician is used to present opinions outside the treatment record, the court may restrict the witness’s testimony rather than exclude the witness entirely.

## Conclusion

In Chau’s suit against Norwegian arising from an onboard trip over a blown-over signpost, the court addressed Norwegian’s request to bar Chau’s treating physicians from testifying as expert witnesses and, while allowing treatment-based testimony, limited any additional opinion testimony that extended beyond the treating role and was not properly disclosed or otherwise admissible under the federal rules.


Bach-Tuyet Chau v. NCL (Bahamas) Ltd., 2017 U.S. Dist. LEXIS 68330 (2017)