Federal Rules of Evidence 701 and 702 govern the admissibility of lay and expert opinion testimony, respectively, in federal courts. Rule 701(c) helps paint the line between the two, providing that an opinion “based on scientific, technical, or other specialized knowledge within the scope of Rule 702” cannot be admitted as a lay opinion. This requirement was added in the 2000 Amendments to Rule 701 to address what the Advisory Committee described as a risk “that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing.” Given this history, one might expect courts to err toward applying Rule 702 to any testimony that inherently draws on expertise that laypeople do not possess. But, as illustrated by the Sixth Circuit’s split decision in United States v. Betro, — F.4th —, 2024 WL 3811838 (6th Cir. 2024), some courts use a different approach.
The defendants in Betro were accused of defrauding Medicare by giving patients medically unnecessary back injections and falsely billing them as “facet injections” to maximize their reimbursement. At trial, the prosecution relied in part on testimony from three physicians who had worked at the defendants’ facility. The physicians compared their practice at the defendants’ facility with their prior practices, testified that the amount of opioids prescribed at the defendants’ facility was “excessive,” and described how to “appropriately” perform facet joint injections. The trial court admitted this testimony as lay opinion under Rule 701, and the defendants were convicted.
On appeal, the defendants argued, among other things, that the trial court erred by admitting the physicians’ testimony without scrutinizing it as expert opinion under Rule 702. The appellate panel affirmed the convictions but disagreed as to whether the testimony was properly admitted as lay opinion. The majority, citing precedent from 2000 — United States v. Wells, 211 F.3d 988 (6th Cir. 2000), which was decided several months before the amendments by which Rule 701(c) was added — reasoned that treating physicians can testify as to their “first-hand observations and treatment” without being qualified as experts. The majority also relied on precedent that had observed a treating physician may opine on causation without authoring a Rule 26 report, so long as the opinion was based on the witness’s “actual treatment of the plaintiff” and his “ordinary medical training.” Thus, because the physicians had all testified solely about their personal treatment of patients on matters within their ordinary medical training, the majority held that their testimony was properly admitted as lay opinion.
The concurrence, however, observed that a treating physician’s testimony often “necessarily relies on specialized medical knowledge.” Citing the language of Rule 701(c) and authority from the Sixth, Seventh, and Eighth Circuits, the concurrence argued that a physician’s expert testimony must pass muster under Rule 702 regardless of whether they personally treated the plaintiff or not. In the concurring judge’s view, the Betro physicians were drawing on their medical expertise when testifying, for example, that injections were “not doing anything for the patients,” or that patients received “more opioids than [the witness] would prescribe,” or that certain injections were intramuscular joint injections rather than facet-joint injections. Thus, their testimony should have been admitted — if at all — pursuant to Rule 702 and not Rule 701.
In our view, the Betro concurrence got the better of the argument. Rule 701(c) was added specifically to change the result in Wells and similar cases on which the Betro majority relied. In effect, Betro holds that a physician’s “ordinary medical training” is not “scientific, technical, or other specialized knowledge within the scope of Rule 702” and thus evades Rule 701(c)’s stricture. This holding has ramifications for Rule 702 that the Betro majority may not have considered — if “ordinary medical training” does not count as expertise within the meaning of Rule 702, then Rule 702(a) prohibits even retained experts from offering opinions that draw on no more than “ordinary medical training.” Nevertheless, unless and until the Sixth Circuit revisits Betro, practitioners in the Sixth Circuit should be aware that treating physicians may be able to offer “lay” opinion on topics that are based solely on their care of the patient and “ordinary” medical training.
