The Wrong Way to Disclose Treating Physicians in Federal Courts

On Monday I wrote about the latest interpretation of NRCP 16.1(a)(1)(B) and the requirements for disclosing treating physicians as expert witnesses in Nevada state court. This post addresses the same question, but in Nevada’s federal courts. Earlier this year I posted about how to disclose treating physicians as expert witnesses in federal courts with an example of what not to do. Here’s another.

In Joseph v. Hartford Fire Ins. Co., 2014 U.S. Dist. LEXIS 109811, 2014 WL 3894072 (D. Nev. Aug. 8, 2014) the plaintiff disclosed no expert witnesses. Hartford filed a pre-trial motion in limine to exclude any undisclosed expert opinions “Joseph opposed the motion, stating that he intended to call two of his treating physicians as non-retained experts at trial.” The motion was granted, Joseph objected to ruling before the district court.

He first argued his non-compliance was substantially justified.

Joseph’s sole argument as to why the failure to disclose was substantially justified is that his attorney had not tried any cases in federal court since the 2010 amendment to Federal Rule of Civil Procedure 26. This amendment created disclosure requirements for non-retained expert witnesses, such as treating physicians, who were not otherwise required to prepare a formal report. Prior to this change, the Federal Rules of Civil Procedure did not contain specific disclosure requirements regarding non-retained experts.

Nevertheless, Joseph’s argument does not persuade the court that the failure to disclose was substantially justified. All parties practicing in federal court are responsible for knowing and adhering to the court’s procedural requirements. In this case, Joseph allowed more than four months to elapse after the expert-disclosure deadline before giving any indication that he intended to call two of his treating physicians as non-retained experts. Thus, the court finds no error in Magistrate Judge Hoffman’s ruling that the failure to disclose was not substantially justified.

He next argued Hartford suffered no prejudice.

Joseph claims that there was no prejudice or surprise to Hartford because Joseph disclosed a list of more than 60 medical providers and over 1400 pages of medical records prior to the deadline. However, Joseph neglected to indicate which, if any, of the medical providers would be used as expert witnesses. In order to prepare for trial, one of Hartford’s retained experts reviewed and analyzed the entirety of the 1400 pages. Because Hartford examined all of the records, Joseph argues, there was no prejudice or surprise when Joseph later declared that two of his treating physicians would testify as non-retained experts.

Joseph’s reasoning would have the court punish Hartford for its own diligence. It was not Hartford’s responsibility to scour through more than 1400 pages of medical records in order to predict whom Joseph might call as an expert witness. Though Hartford did examine all of the records, it was prejudiced by the fact that plaintiff’s failure to disclose created the need to do so.

The last ditch argument was that there was no evidence Joseph acted in bad faith.

Joseph argues that Magistrate Judge Hoffman’s order was contrary to law because exclusion of the witnesses would be akin to summary judgment in Hartford’s favor. Joseph argues the court may not exclude these witnesses unless there is a finding of bad faith.

Hartford urges the court to rely on Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). The Yeti court recognized that exclusion of the defendants’ damages expert would make it “almost impossible” for the defendants to rebut the plaintiffs’ damages allegations, but held that exclusion was an appropriate remedy for failing to fulfill expert disclosure requirements, without requiring proof of bad faith. Id. Therefore the fact that Magistrate Judge Hoffman, without a finding of bad faith, ruled that plaintiff’s failure warranted the exclusion of his non-retained experts was not in error.

Ouch. Disclosing expert witnesses appropriately is very important.