On June 5 the Supreme Court published FCH1, L.L.C. v. Rodriguez, 130 Nev. Adv. Op. 46 (2014). As I posted, it said some very interesting things about using expert witnesses in Nevada. It also provoked a lot of conversations and a petition to rehear. On October 2, the Court issued an amended opinion. It changed one sentence.
The original opinion stated “[a]llowing Dr. Kidwell and Dr. Shannon to so testify without requiring them to disclose expert reports was also an abuse of the district court’s discretion—once they opined as to the cause of Rodriguez’s condition and treatments they testified as experts and should have been subject to the expert witness standards. Brooks v. Union Pac. R. Co., 620 F.3d 896, 900 (8th Cir. 2010).” The amended opinion stated “[a]llowing Dr. Kidwell and Dr. Shannon to so testify without requiring an appropriate NRCP 16.1(a)(2)(B) disclosure was also an abuse of the district court’s discretion—once they opined as to the cause of Rodriguez’s condition and treatments they testified as experts and should have been subject to the section’s standards.”
What does the change mean? First, FCH1 still makes absolutely clear that treating physicians may not testify to causation unless they have been disclosed per NRCP 16.1(a)(1)(B). This statement is no surprise to regular readers, I wrote about it twice before (here & here).
The change between the two opinions is in the report requirement. The original opinion required an expert report from any treating physician who was to testify on causation. The revised opinion withdraws that requirement in favor of simply enforcing NRCP 16.1(a)(1)(B), but with a caveat. A treating physician could still be subject to the reporting requirement if the treater obviously strays well beyond his treatment. In this case, it appeared Dr. Schifini offered very limited treatment but was offered to testify to causation for nearly the entire medical case. He reviewed “thousands” of records, far more than his treatment. The record was ambiguous as to why he reviewed those records. The court concluded he had not reviewed them in the normal scope of his treatment and had become an expert subject to the reporting requirement.
The amended opinion has at least two practical impacts. First, the personal injury plaintiff cannot document dump her entire medical file on one treating physician the week before trial and then offer this physician to testify to the whole case. This seems frustratingly common. Second, it places greater emphasis on defendants obtaining complete copies of treating physician’s charts with a custodian of records affidavit. Why? You are then able to determine what was in her file, when and, if needed, debate whether she is subject to the report requirement. It might be suspicious if the treater’s file suddenly grew by 2,453 pages 20 days before trial.
In summary, the amended FCH1 effectively confirms what I wrote in my prior posts (yay!): A treater may not testify to causation unless the treater is at least disclosed as an expert per NRCP 16.1(a)(1)(B). It adds the caveat that a treater may be subject to the report requirements under certain circumstances.