Nevada’s 2012 Expert Disclosure Revisions One Year Later: Disclosing the Non-Retained Expert

The first post in this three part series discussed how and why NRCP 16.1(a)(2)(B) and 16.1(a)(2)(C)(ii) came to be.  This second post discusses how the changes have impacted the disclosure of non-retained, no report experts. First two cases discussed are my own.  I include the case numbers, as I do with most posts, simply for transparency.

A-12-654869-C: Experts Improperly Disclosed, but Plaintiff Survives It

This case is one of the more unique retail cases I have handled. I omit the names of the parties and counsel simply because their identity is irrelevant here.  Plaintiffs issued their NRCP 16.1(a)(1)(A) disclosures and listed 33 different medical facilities from whom Plaintiffs might call witnesses. Each disclosure said the same thing.

The physicians and other health care providers listed below are Plaintiff[’s] treating physicians and/or health care providers and may testify as to [her] injuries and medical treatment, and may give expert medical opinion testimony regarding the following subjects:

a. Description of injuries suffered by Plaintiff … as a result of the subject incident.
b. Description of medical treatment provided to Plaintiff … as a result of the subject incident.
c. Diagnosis of injuries suffered by Plaintiff … as a result of the subject incident.
d. Causation of injuries suffered by Plaintiff … as a result of the subject incident.
e. Prognosis regarding injuries suffered by Plaintiff … as a result of the subject incident.
f. Permanency of injuries suffered by Plaintiff … as a result of the subject incident.
g. Disability suffered by Plaintiff … as a result of the subject incident.
h. Description of future medical treatment which Plaintiff … will need as a result of the subject incident.
i. Reasonableness and necessity of medical treatment which Plaintiff … has received as a result of the subject incident.
j. Reasonable and customary amounts for the medical bills for medical treatment which Plaintiff … has received as a result of the subject incident.

The initial expert disclosure deadline came and my client disclosed, but plaintiff did not.  I moved for summary judgment and argued Plaintiff could not prove her damages case absent medical expert testimony. I argued, among other things, NRCP 16.1(a)(1)(A) disclosures naming every conceivable witness who might know something about the case is not a NRCP 16.1(a)(2)(B) disclosure of an expert witness. The two actions are separate and distinct. “Disclosing a person as a witness and disclosing a person as an expert witness are two distinct acts.” Musser v. Gentiva Health Services, 356 F.3d 751, 757-58 (7th Cir. 2004). “Formal disclosure of experts is not pointless. Knowing the identity of the opponent’s expert witnesses allows a party to properly prepare for trial. [The defendant] should not be made to assume that each witness disclosed by the [plaintiff] could be an expert witness at trial.” Id.

The motion was heard on January 15, 2013. The district court agreed Plaintiff’s disclosures were inadequate, but then denied the motion. Plaintiff was instead ordered to appropriately supplement her disclosures and discovery was extended. The legal analysis was correct, my client just did not get the remedy they sought.

Plaintiff then issued her disclosure of non-retained experts. At this point I again objected. The objection was because a summary of anticipated medical testimony from a lawyer is worthless. As much as personal injury lawyers, plaintiff and defense, deal with medicine, they are still not doctors. A non-medically trained lawyer’s synopsis of what he thinks a treating physician might say at trial is not the same as what a treating physician states he will say. Further, the opposing parties cannot cross-examine a doctor on how a lawyer with no medical training interpreted his records erroneously and his opinions are actually something different than what was disclosed.

Based upon reading the ADKT 472 and some federal case law, I suspected I knew how this was going to end. Nevertheless, at least one federal court, has sided with me. “[T]he amendment to Rule 26 mandates that the treating physicians must file a summary report, disclosing ‘(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.’” Coleman v. Am. Family Mut. Ins. Co., 274 F.R.D. 641, 645 (N.D. Ind. 2011) (quoting FRCP 26(a)(2)(C)). Counsel and I agreed to simply address this question via a telephone conference with DC Bulla. The ruling was as anticipated and filed March 19, 2013. “The court determines Plaintiffs’ January 29, 2013 NRCP 16.1(a)(2)(B) designation is appropriate. A separate writing is not required of these experts. Counsel may appropriately draft the summary such as occurred here.”

A-11-653852-C: Experts Improperly Disclosed, but Plaintiff Survives It

This was a trip and fall case. A similar situation arose and I filed a motion, this time in limine for reasons which are irrelevant. Plaintiff issued a series of NRCP 16.1(a)(1)(A) disclosures that stated as follows concerning treating physicians.

These treating physicians are expected to give expert opinions regarding the treatment of the plaintiff, the necessity of the treatment rendered, the necessity of future treatment to be rendered, the causation of the necessity for past and future treatment, their expert opinion as to past and future restrictions of activities caused by the incident. Their opinions shall include the cost of past medical care, future medical care, and whether those medical costs fall within ordinary and customary charges in the community for similar medical care and treatment. Their testimony will include expert opinions regarding the effect of the incident-related injuries on plaintiff’s ability to engage in activities of daily living. Their testimony may also include expert opinions as to whether the plaintiff has a diminished life expectancy as a result of the accident.

In rendering their opinions, plaintiff’s treating physicians will rely upon the records of all physicians, health care providers, and experts who have rendered medical care and treatment to the plaintiff and their respective expert opinions regarding the nature, extent and cause of plaintiff’s injuries, the reasonableness and necessity of plaintiff’s past medical treatment, the reasonable future medical care that has been necessitated by the accident, the amount, reasonableness and necessity of charges for medical treatment rendered to the plaintiff, the amount reasonableness and necessity of future medical treatment caused by plaintiff’s accident related injuries, including lifetime medical, surgical, rehabilitative and associated medical expenses, the charges for plaintiff’s past and future medical care as being customary for physicians and/or healthcare providers in the medical community; the nature, extent and manner in which the plaintiff’s accident-related injuries have affected his/her ability to continue to perform activities of daily living, and the nature and extent and manner in which plaintiff’s incident-related injuries have diminished and restricted plaintiff’s future daily living activities.

One of Plaintiff’s later NRCP 16.1(a)(1)(A) disclosures added the following as to three additional providers.

In addition to the description of expected testimony set forth above, [physician] is expected to testify regarding his opinions as to the cause of plaintiff’s injuries, the extent of plaintiff’s injuries, his need for and the reasonableness and necessity of the treatment that he provided for plaintiff following the accident. He will also testify regarding the reasonableness and necessity of the costs associated with his treatment. He will also testify regarding the plaintiff’s need for future treatment resulting from the subject incident. His testimony will be based upon his specialized training, education and experience in [specialty]. His testimony will also be based upon his medical history, his examinations of the plaintiff, his review of the medical records and his review of the radiographic films.

My motion argued similar points as before, but asked simply to exclude undisclosed experts from trial. The motion was heard March 26, 2013 and granted in part, the minute order is below.

Statements by Attorney Lowry in support in the relief requested. Opposition by Attorney Anderson. Discussion regarding Drafter’s Comments as to the amendment to rule 16.1. COURT ORDERED Defendant’s Motion in Limine re Treating Physicians GRANTED IN PART. COURT FURTHER ORDERED Physicians not excluded, but testimony will be limited to medical records, unless amended. COURT ADDITIONALLY ORDERED Plaintiff will have until 4/12/13 to supplement their disclosures. COURT ORDERED the rebuttal expert cut off date shall be 5/10/13, and the new discovery cut off date is 6/7/13.

This is only half the story. The court concluded Plaintiff’s disclosure failed to comply with NRCP 16.1(a)(2)(B). The disclosure quoted above listed general subjects upon which each treating physician might testify, but did not state the opinions of each physician on that topic. Outlining a general topic area is insufficient, the testimony must be stated with reasonable specificity.  As you can see, however, discovery was once again extended and Plaintiff given an opportunity to rectify his error.

What happened next only underscores the point of Coleman v. Am. Family Mut. Ins. Co. and why each treating physician the plaintiff wishes to call at trial should provide a brief summary of their opinions as opposed to a lawyer with no medical training drafting it. I received Plaintiff’s supplemental disclosure. I then deposed the relevant physicians and questioned them as to the lawyer drafted disclosure. Inevitably, they did not agree with the scope of testimony it listed and proceeded to give opinions on other topics.

Federal Courts Rule Differently:  Carrillo v. B&J Andrews Enters., LLC, 2013 U.S. Dist. LEXIS 12435 (D. Nev. 2013)

I have repeatedly noted numerous orders from federal courts, published and unpublished, concluding simply dumping medical records on opposing counsel was not an appropriate disclosure of non-retained medical experts. Carrillo v. B&J Andrews Enters., LLC is the first decision from Nevada’s federal court of which I am aware to touch on this topic.

Carrillo was a slip and fall case. Plaintiff disclosed non-retained medical experts by simply dumping records and defendants moved to strike. “Plaintiff counters that the prior disclosure of treatment records is sufficient to satisfy any disclosure requirements, including those under Rule 26(a)(2)(C). Plaintiff’s position is not novel and has been rejected by several courts.” Id. at 15-16 (string citation omitted). I gleefully note many of the unpublished orders I have discussed were among those in the court’s string citation.

The foregoing cases are persuasive and the undersigned agrees that the production or disclosure of medical records, standing alone, is not sufficient to satisfy the requirements of Rule 26(a)(2)(C). While medical records undoubtedly touch on the subject matter of a treating physician’s testimony, they do not necessarily provide an accurate or complete summary of expected testimony since medical records are not typically created in anticipation that those records would be used as a witness disclosure. Here, in a manner inconsistent with Rule 26(a)(2)(C), Plaintiff’s counsel has simply dumped medical records onto Defendants’ counsel. The court will not place the burden on Defendants to sift through medical records in an attempt to figure out what each expert may testify to. Brown v. Providence Medical Center, 2011 U.S. Dist. LEXIS 111098, 2011 WL 4498824 (D. Neb.). Consequently, Plaintiff has failed to comply with the disclosure requirements of Rule 26(a)(2)(C).

Id. at 17-18.

I disagree with the court’s ultimate solution to the problem this created. It concluded this error was harmless under the facts of the case. “Nevertheless, Plaintiff should not obtain a strategic litigation advantage because of her own failure. Therefore, Defendants’ motion is granted to the extent it seeks to limit Seip and Hansen’s testimony to the subject matter of their treatment as disclosed in the medical records and to opinions formed in the course of treatment.” Id. at 20. I do not know what those medical records contained, but this ruling could create an exception that swallows the rule. The court first rules a document dump is not an appropriate disclosure, but then waives the error and “limits” the physician’s testimony to the records. In this circumstance, as I have repeatedly urged, it seems the more appropriate sanction is to prohibit the physicians from testifying as to causation. The Ninth Circuit has ruled a treating physician is not allowed to offer opinion testimony on the issue of causation unless disclosed as an expert witness because causation is a hypothetical question designated for expert witnesses. United States v. Urena, 659 F.3d 903, 908 (9th Cir. 2011). In that circumstance, the treating physicians could theoretically testify as fact witnesses but could not testify as to causation because they were not designated to do so.

When a Non-Retained Expert is Actually a Retained Expert:  Ghiorzi v. Whitewater Pools & Spas, Inc., 2011 U.S. Dist. LEXIS 125329, 2011 WL 5190804 (D. Nev. 2011)

A treating physician is not always a non-retained expert.  In this case the initial expert disclosure deadline was April 19, 2011 but was then extended to July 25, 2011.  Even then, Plaintiff disclosed no medical experts.  Instead, on September 13 Plaintiff disclosed Dr. Schifini as a medical expert.  “Plaintiff testified at his deposition that he was referred to Dr. Schifini by his attorney, Robert Winner, and first saw Dr. Schifini August 15, 2011, three weeks after the deadline for designating experts. Dr. Schifini gave Plaintiff an injection for pain.”  Dr. Schifini wasn’t really just a treating physician.

In this case, the court finds that Plaintiff retained Dr. Schifini to provide expert opinion testimony beyond the scope of opinions formed during the course of his treatment of the Plaintiff. According to his August 22, 2011, letter, which is attached as Exhibit “E” to Defendant’s emergency motion, Dr. Schifini received records from counsel for Plaintiff by hand delivery August 8, 2011. He was asked to review these records and summarize his opinions and conclusions following his review of the records, as well as the results of his independent medical evaluation of August 15, 2011. He understood that the Plaintiff was frustrated with the delay in treatment through the Veterans Administration hospitals, as well as his increase in pain “which prompted the referral to my office.” He was provided with approximately 800 pages of medical records to review by Plaintiff’s counsel, approximately 150 of which were VA medical records. The remaining categories of records he reviewed were from Advanced Medical Center, Las Vegas Fire & Rescue, Nevada Imaging Centers, and University Medical Center.

After reviewing these records “which followed the date of loss of April 25, 2007,” he formulated several opinions and conclusions. The court finds that these opinions and conclusions were not formed during the course of treatment of the Plaintiff. Rather, in the doctor’s own words, they were clearly formed for the purpose of providing medical legal causation testimony and “opinions regarding the care, appropriateness of care, necessity of care and relatedness of care provided to Mr. Ghiorzi as a result of this April 25, 2007 pool filter accident.” For example, he opines that the Plaintiff’s historical recollection of the events of April 25, 2007, are fairly consistent, and the Plaintiff suffered injuries in the form of “a closed head injury, a concussion, bi-lateral shoulder pain, lacerations possibly brachial plexus versus cervical nerve root injury, and avulsion chip of the left coracoid process, right periorbital ecchymosis, as well as facial and nasal fractures” as a result of the pool filter explosion involved in this case. He also opines that the Plaintiff “has had tremendous pain and suffering” as a result of the April 25, 2007 accident. He opines that “at some point” the Plaintiff may be in need of spine surgery consultation due to his ongoing complaints, although he is unable to determine “on a more likely or not basis” whether the Plaintiff will need a spine surgery referral. He also opines that, other than a few primary care visits, all treatment Plaintiff has received to date is directly related to the events of April 25, 2007, based on his review of the medical records provided.

His letter report goes on to opine about the value of services provided by Veterans Administration medical facilities which did not provide specific billing information. He opines that a new consultation is valued at $600.00 per visit and that typical office visits should be billed at $200.00 per visit. Based on his own experience, he believes the shoulder surgery Plaintiff had is typically “assigned a value of $30,000.00 to $40,000.00.” He was not able to provide an estimate of the cost for the Plaintiff’s nasal surgery. His report goes on to provide detailed dollar amounts for reasonable costs for a number of different diagnostic tests.

The result?  Dr. Schifini could testify about the limited treatment he provided, but nothing more.

The Verdict

Parties are still experiencing difficulty complying with the disclosure requirements imposed by NRCP 16.1(a)(2)(B) for non-retained experts.  Be wary.