     16-779
     Brutton v. United States, et. al.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of April, two thousand seventeen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                DENNIS JACOBS,
 8                              Circuit Judges,
 9                LEWIS A. KAPLAN,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       SHANEEN BRUTTON,
14                Plaintiff-Appellant,
15
16                    -v.-                                               16-779
17
18       UNITED STATES OF AMERICA, ARBEE
19       MANAGEMENT LTD., and ANTONONIO
20       TAVAREZ,
21                Defendants-Appellants.
22



                *
               Judge Lewis A. Kaplan, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
                                                  1
 1   UNITED STATES POSTAL SERVICE and
 2   EILLEN CUEVAS
 3            Defendants.
 4   - - - - - - - - - - - - - - - - - - - -X
 5
 6   FOR APPELLANT:              RYAN LAWLOR, New York, New
                                 York.
 7   FOR APPELLEE UNITED         PETER ARONOFF, for Joon H. Kim,
 8   STATES OF AMERICA:          Acting United States Attorney
                                 for the Southern District of
                                 New York (Christopher Connolly,
                                 on the brief).
 9   FOR APPELLEE ARBEE          MARJORIE E. BORNES, Brooklyn,
10   MANAGEMENT LTD. and         New York.
11   ANTONIO TAVAREZ:
12
13       Appeal from a judgment of the United States District

14   Court for the Southern District of New York (Fox, M.J.).

15       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

16   AND DECREED that the judgment of the district court be

17   AFFIRMED.

18       Plaintiff Shaneen Brutton, who was in a motor vehicle

19   accident with a postal truck, appeals from the judgment of

20   the United States District Court for the Southern District

21   of New York (Fox, M.J.) dismissing, pursuant to Federal Rule

22   of Civil Procedure 52(c), her suit under the Federal Tort

23   Claims Act (“FTCA”).   We assume the parties’ familiarity

24   with the underlying facts, the procedural history, and the

25   issues presented for review.   We affirm because the district

26   court properly limited the testimony of Brutton’s physician,


                                    2
 1   and as a result Brutton failed to establish that her

 2   injuries were not caused by an earlier accident involving a

 3   collapsed ceiling or the extent to which her previous

 4   injuries were aggravated by the later injury.

 5       On October 20, 2012, Brutton was a passenger in a taxi

 6   that collided with a United States Postal Service delivery

 7   truck in Upper Manhattan.   Approximately a year later,

 8   Brutton saw Dr. Sebastian Lattuga, told him about the

 9   accident, and complained of neck and back pain.   He

10   eventually operated on her.   She sued the United States, the

11   taxi company, and the taxi driver; and the district court

12   commenced a bench trial.

13       New York law applies to the state tort claims against

14   the taxi company and driver as well as to the FTCA claims

15   against the United States, Liranzo v. United States, 690

16   F.3d 78, 86 (2d Cir. 2012).   Under New York law, Brutton

17   needed to establish, “that the injury was caused by the

18   accident, as opposed to other possibilities evidenced in the

19   record.”   Diaz v. Anasco, 38 A.D.3d 295, 296 (1st Dep’t.

20   2007).   There was another possible cause of Brutton’s back

21   and neck injuries: about a month before the car accident, a

22   piece of bathroom ceiling fell on her, and she went to the

23   emergency room complaining of head, neck, and back pain.

24   Dr. Lattuga’s files contained no references to that

                                   3
 1   incident.    On a motion in limine, the district court ruled

 2   that Dr. Lattuga could only testify about matters he learned

 3   during his treatment of Brutton, thus precluding him from

 4   testifying as to whether the falling ceiling could have been

 5   a cause of Brutton’s injuries.      After Dr. Lattuga’s cross-

 6   examination, the district court granted the defendants’

 7   motion for judgment on partial findings on the issue of

 8   causation, pursuant to Federal Rule of Civil Procedure

 9   52(c), and ended the trial.

10       1.      We review the district court’s evidentiary ruling

11   on the permissible scope of Dr. Lattuga’s testimony for

12   abuse of discretion.    United States v. Birbal, 62 F.3d 456,

13   464 (2d Cir. 1995).    To avoid ambush, Federal Rule of Civil

14   Procedure 26(a)(2)(B) requires a witness retained to provide

15   expert testimony to produce an “expert report” giving, among

16   other things, “a complete statement of all opinions the

17   witness will express and the basis and reasons for them.”

18   Dr. Lattuga did not produce an expert report in this case.

19   However, the notes to Rule 26 specifically contemplate that

20   a treating physician, such as Dr. Lattuga, may testify

21   without a written expert report.     Fed. R. Civ. Pro. 26

22   Advisory Committee’s 1993 Notes.

23       The district court did not abuse its discretion in

24   striking a balance.    Dr. Lattuga was permitted to testify in

                                     4
 1   his capacity as a treating physician as to opinions he

 2   formed in the course of treating Brutton; but he was not

 3   permitted to testify as a retained expert concerning

 4   information he learned after treating Brutton.   Our fellow

 5   circuits, an unpublished decision of this court, and

 6   district courts within this circuit have struck the same

 7   balance many times.1

 8       The district court’s evidentiary ruling serves a key

 9   purpose of Rule 26: providing notice of the witness’s

10   testimony on a complicated topic.   Treatment records



         1
           For decisions by other circuits, see Meyers v. Nat'l
     R.R. Passenger Corp. (Amtrak), 619 F.3d 729, 734–35 (7th
     Cir. 2010) (“a treating physician who is offered to provide
     expert testimony as to the cause of the plaintiff's injury,
     but who did not make that determination in the course of
     providing treatment, should be deemed to be one ‘retained or
     specially employed to provide expert testimony in the case,’
     and thus is required to submit an expert report in
     accordance with Rule 26(a)(2).”); Goodman v. Staples The
     Office Superstore, LLC, 644 F.3d 817, 824-26 (9th Cir. 2011)
     (same); Fielden v. CSX Transp., Inc., 482 F.3d 866, 869-73
     (6th Cir. 2007), as amended on denial of reh'g and reh'g en
     banc (July 2, 2007) (same). For district courts in the
     circuit, see Goss v. JLG Indus., Inc., No. 10-CV-58S, 2012
     WL 268034, at *10 (W.D.N.Y. Jan. 30, 2012) (“a treating
     physician must confine himself to information acquired as a
     treating physician, and not give an opinion formulated for
     trial . . . The key inquiry is whether a treating physician
     testifies on the basis of his personal knowledge from
     consultation, examination and treatment of the Plaintiff,
     and not from information acquired from outside sources.”);
     Spencer v. Int'l Shoppes, Inc., No. CV 06-2637 AKT, 2011 WL
     4383046, at *3 (E.D.N.Y. Sept. 20, 2011) (same). And for an
     unpublished decision by this Court, see In re Fosamax Prod.
     Liab. Litig., 509 F. App'x 69, 74 (2d Cir. 2013).
                                  5
 1   produced in discovery give the opposing side advance notice

 2   of a treating physician’s proposed testimony.     An expert

 3   report serves that purpose in the case of a retained medical

 4   expert.   Brutton produced neither medical records nor an

 5   expert report on the subject of whether her injury was

 6   caused by the taxi accident or the falling ceiling.     The

 7   district court was therefore well within its discretion in

 8   preventing Brutton’s counsel from asking Dr. Lattuga whether

 9   her injuries could have been caused by the falling ceiling.

10       2.    The district court ruled against Brutton on the

11   issue of causation after Dr. Lattuga’s testimony.     In a

12   bench trial, the district court may rule against a party on

13   a particular issue after the party has been fully heard on

14   that issue.   Fed. R. Civ. Pro. 52(c).   When it makes such a

15   ruling, we review the district court’s findings of fact for

16   clear error and its conclusions of law de novo.    Sleepy's

17   LLC v. Select Comfort Wholesale Corp., 779 F.3d 191, 195 (2d

18   Cir. 2015).

19       New York law requires that a plaintiff adduce expert

20   testimony to rule out alternative causes of injury that

21   appear in the record.   Diaz, 38 A.D.3d at 296.   The ceiling

22   accident was a competing potential cause of Brutton’s neck

23   and back injuries.   Because the district court exercised

24   discretion to limit Dr. Lattuga’s testimony on causation,

                                   6
 1   the doctor was unable to rule out that competing cause.    The

 2   district court’s grant of judgment pursuant to Rule 52(c)

 3   was therefore proper.

 4       Brutton’s arguments to the contrary are unavailing.

 5   First, Brutton, a layperson, would have been unable to

 6   provide the required expert testimony about the cause of her

 7   injury.   Second, there is no evidence that the district

 8   court’s conclusion relied on the affidavit of the

 9   government’s medical expert: the district court explicitly

10   recognized it would be premature to do so.   And third, it

11   makes no sense to argue that the plaintiff had not been

12   “fully heard” on an issue because the defendants’ expert was

13   yet to testify as part of the defendants’ case-in-chief.

14       For the foregoing reasons, and finding no merit in

15   Brutton’s other arguments, we hereby AFFIRM the judgment of

16   the district court.
17
18
19                               FOR THE COURT:
20                               CATHERINE O’HAGAN WOLFE, CLERK
21




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