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Personal Injury

Troy, NY |

If you show up before a trial judge with a treating physician ready to testify before a jury can the defendant file a motion to dismiss the case since he will only be testifying as a treating physician and not as an expert, which his records were subpoena and are now in the hands of the court?

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Attorney answers 3


What is the basis for the motion? A treating physician can testify as an expert without the need for expert disclosure. Some injuries require expert testimony and some don't.

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.


Defense attorneys can and will file motions for directed verdict, motions to dismiss, and other case-ending motions all the time. It's their job.

Understanding that this is actually the duty of the defense attorney, the plaintiff's trial attorney builds the correct foundation for all evidence, sets forth the required prima facie elements of each cause of action and correctly offers evidence to meet or exceed the burden of proof as to eaach element, consistent with all of the rules of civil procedure and the rules of evidence.

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Law Offices of Andrew D. Myers, North Andover, MA & Derry, NH provide answers for informational purposes only. Actual legal advice can only be given by an attorney licensed in your jurisdiction, thoroughly familiar with the area of the law in which your concern lies. This creates no attorney-client relationship.


The situation you describe may result in the doctor being precluded, but you have not provided all the necessary facts in your question. I sincerely hope you are not representing yourself, because you could get into a jam if you don't comply with the court rules and the provisions of any pretrial conference order regarding exchange of records, reports, and witnesses. If you are being represented by a competent attorney, you will not have to worry about the doctor being precluded.

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