Disclosing Treating Physicians as Experts in Federal Courts

Given the uproar FCH1 v. Rodriguez recently caused in Nevada state courts, now seems like a good time to also consider the disclosure requirements in federal courts.

Nihart v. Nat’l Park Serv., 2014 U.S. Dist. LEXIS 51438, 2014 WL 1415198 (D. Nev. Apr. 10, 2014) addressed this topic. The plaintiff did not disclose her treating physicians as experts and defendant moved to “limit the treating physicians’ testimony to their observations as percipient witnesses….” The court noted “[a] treating physician may not testify about injury causation unless she is properly designated an expert witness.”

The plaintiff first argued her failure was substantially justified. That argument went over like a fart in church.

Nihart attempts to justify her noncompliance by arguing that to determine the exact opinions of her treating physicians would have required substantial costs—at least $3,500 per physician. Rule 26(a)(2)(C), however, does not require “exact” opinions. The rule requires disclosure of only “the subject matter” of the expected testimony and “a summary of the facts and opinions to which the witness is expected to testify.” Moreover, it is difficult to understand how Nihart intends for her treating physicians to testify as to causation if she has not yet prepared the information required by Rule 26(a)(2)(C). And if she has that information in hand, there is no apparent reason why she could not have provided it to the Government, even if that effort was untimely as an attempt to cure her prior noncompliance. In short, Nihart’s cost concerns do not amount to substantial justification.

Plaintiff then argued her error was harmless, to no avail.

Nihart contends her noncompliance was harmless because (1) the Government knew that she intended to call her treating physicians to testify about causation, based on conversations between counsel and on the content of her previous administrative claim; (2) armed with this knowledge, the Government failed to request a supplemental Rule 26(f) disclosure; (3) the Government had “limitless time” to prepare for trial with the knowledge of Nihart’s intent to use these witnesses to establish causation; and (4) the Government never requested any additional information about these witnesses.

Nihart’s argument fails for several reasons. First, the Government does not have the burden to request supplemental Rule 26(f) disclosures. The burden was on Nihart to comply with Rule 26(a)(2)(A) and (C). Second, even if Nihart had communicated her intent to call her treating physicians as experts, her affirmative designation of Dr. Gary J. La Tourette as an expert witness implied that she chose not to designate her treating physicians as experts. Her designation of Dr. La Tourette also implies that she understood how to comply with Rule 26(a)(2)(A) and (C).

Third, allowing these witnesses would delay the litigation and negatively impact the Court’s docket. Discovery closed long ago, and the case is ready for trial.

Fourth, the Government certainly would be prejudiced by allowing these witnesses to testify as experts. The Government would have to determine whether to depose the newly-designated experts, and whether to find, prepare and designate rebuttal experts. If the Government’s experts prepared full reports under Rule 26(a)(2)(B), Nihart would then need the opportunity to examine those reports and determine how to respond and whether to conduct additional discovery.

Fifth, disallowing the treating physicians as experts would not foreclose the disposition of the case on the merits. Dr. La Tourette is designated to testify on Nihart’s behalf as to causation. Thus, the treating physicians are not Nihart’s only evidence as to causation, so granting the Government’s motion does not amount to dismissing Nihart’s claim.

Lesson? Appropriately disclose treating physicians as expert witnesses or risk having them excluded.