Non-Retained Expert Disclosures in Utah & Idaho

Non-retained expert disclosures still generate the largest volume of questions I receive.  Numerous prior posts discuss how they occur in Nevada, but our neighbors to the north and east have also considered them in similar contexts.

Utah: The burden is on the disclosing party.

A Utah case considered non-retained expert disclosures in a similar context.  Party 1 attempts to disclose non-retained experts.  Before trial, Party 2 moves to exclude those non-retained experts because the disclosure was deficient.  Party 1 opposes and argues Party 2 waived the issue by not seeking supplementation or filing a motion to compel.

In RJW Media, Inc. v. Heath the trial court suggested the party moving to exclude the expert had a duty to object soon after receiving the original, deficient disclosure.[1]  The Court of Appeals reversed.

[W]here a party desires to use a witness or a document, and where that party’s disclosure is inadequate, the opposing party remains under no obligation to bring the issue to a head. An insufficient disclosure by one party does not shift the burden and risk to resolve the insufficient disclosure to the other party, who now must either seek court intervention or waive objections to the sufficiency of the disclosure. Such an approach would undermine the purpose of the rule, which ultimately is to encourage open disclosures without a formal discovery request, and would encourage scant disclosures at the outset in hopes that the opposing party will not seek to compel more.[2]

To reduce potential risk “disclosing parties should be liberally forthcoming rather than minimally compliant and risk the possible consequences of testimony exclusion.  …  And while there is no penalty in the rule for failing to do so, the receiving party does take the risk that a trial court may ultimately find the disclosure sufficient….”[3]

Idaho: Inadequately disclosed non-retained experts may not testify as to causation.

Easterling v. Kendall concerned medical malpractice in Idaho.[4]  The defendant doctor elected to object to plaintiff’s non-retained expert disclosures.  The district court allowed plaintiff to amend the disclosures, to which the defendant again objected and then moved to bar causation testimony from any of them.  The district court granted the motion, then granted a directed verdict because no causation testimony was presented at trial, and was affirmed on appeal.

Easterling’s disclosure for Dr. Wapen stated Dr. Wapen would testify to the standard of care and Kendall’s breach, but did not indicate Dr. Wapen would testify to causation.

Kendall first learned that Wapen would offer opinion testimony on causation during Wapen’s deposition on November 21, 2013, over a month after Easterling’s initial disclosures were due. Two weeks later, Easterling served her December 5 supplementation, indicating that Wapen would offer opinion testimony on the issue of causation. However, this supplementation did not provide any of the information required to be disclosed for retained experts under Rule 26(b)(4). The supplementation merely stated that Wapen would testify consistent with his deposition testimony and then provided direct quotes taken from Wapen’s deposition on November 21. The supplementation did not state what Wapen’s opinions would be, the basis for Wapen’s causation opinions, or any facts or data that Wapen relied on in developing those opinions. Easterling did not even attempt to provide such information until her January 8 supplementation and rebuttal disclosures, three months after Easterling’s initial disclosures were due and one month after Kendall’s initial disclosures were due.

Oops.  The district court’s exclusion sanction was affirmed.  “Easterling essentially disclosed a brand new expert and did not attempt to provide any of the information required under the scheduling order and Rule 26(b)(4) until the January 8 supplementation—three months after her initial disclosures were due.”[5]

The district court’s ruling barring causation testimony from the other non-retained medical experts was also affirmed.  It was notable that this ruling was not based upon Idaho’s Rules of Civil Procedure because, at the time, an affirmative disclosure obligation apparently did not exist.  However, the defendant had served an interrogatory requesting information that is substantively identical to an affirmative disclosure requirement.

The patient’s first responses to the interrogatory

disclosed that five treating physicians may be called to testify that, to a reasonable degree of medical certainty, Dr. Kendall’s failure to diagnose was a substantial factor in causing the injuries suffered by Easterling.  Easterling’s December 5 supplementation merely provided that the treating physicians would provide testimony consistent with their depositions and quoted excerpts directly from each physician’s deposition. As found by the district court, neither of these disclosures provided the information requested in Interrogatory No. 3 because Easterling did not provide the opinions of the treating physicians or the factual basis for those opinions.[6]

However, the district court gave the patient a third chance to answer the interrogatory, but the supplemental response fared no better.  Although the supplemental response was lengthy,

it nonetheless failed to provide an adequate response to Interrogatory No. 3. The disclosures for each of the five treating physicians at issue were identical. Each disclosure provided that the treating physician was expected to testify that Dr. Kendall’s misdiagnosis of Easterling caused her not to receive treatment for her carotid artery dissection on September 5, 2011, and if treatment had been provided, it would have more likely than not benefitted her. Each treating physician’s opinion was allegedly based on his or her treatment of Easterling and information in her medical records. Each disclosure was also accompanied by the same twenty-page summary of quotes taken from the medical records and depositions—identical to the summary that accompanied Wapen’s supplemental disclosure.[7]

The Supreme Court was also concerned by how that summary was created.

Easterling’s counsel disclosed that he had not actually consulted any of the treating physicians when drafting the January 8 supplementation because the treating physicians refused to speak with him. None of the opinions disclosed were actually provided by the treating physicians, nor had any of the treating physicians indicated that they would offer causation opinions at trial. What Easterling’s counsel actually provided in the January 8 supplementation was counsel’s hope for what the treating physicians might say if he subpoenaed them and put them on the stand.[8]

This argument relied upon IRCP 26’s requirement to disclose the subject matter upon which an expert witness is expected to testify.  “One can say what a witness’ expected testimony may be without actually having spoken with the witness.”[9]  Plaintiff’s problem was the discovery scheduling order required her to also disclose

‘information required by Rule 26(b)(4) of the Idaho Rules of Civil Procedure.’  Providing counsel’s mere expectation as to what an expert opinion might be, without any reasonable basis to support that expectation, does not comport with Rule 26 and the policies underlying expert witness discovery.  …  Easterling failed to provide Kendall with accurate information as to the treating physicians’ causation opinions and whether the treating physicians even held any such opinions.  …  Rule 26(e) provides that the court may exclude testimony not disclosed by a required supplementation.[10]

No experts on causation = directed defense verdict.  Why a jury was even necessary was not explained, because it seems if all causation testimony was excluded in pre-trial motions then summary judgment should have been entered.

[1] 392 P.3d 956, 962 (Utah App. 2017).
[2] Id.
[3] Id. at 963.
[4] 367 P.3d 1214 (Idaho 2016).
[5] Id. at 1222.
[6] Id. at 1223-24.
[7] Id. at 1224.
[8] Id.
[9] Id.
[10] Id.