Improper Rebuttal Experts and Non-Retained Expert Disclosures

I have posted a lot about the appropriate scope of rebuttal expert testimony (here, here, here) and how to appropriately disclose non-retained expert witnesses (here, here, here). I finally had a case that concerned both these issues and I am happy to share the rulings in hopes it helps someone avoid becoming a legal malpractice file on my desk.

The rulings arose in A-13-674491-C, assigned to Judge Cadish. As a disclaimer, I filed the original motions but an excess carrier assumed control of the file with its own attorneys before the motions were argued. I just read about the results later.

Plaintiff’s rebuttal expert was precluded from offering initial expert opinions.

My client disclosed a biomechanical expert in its initial disclosures. The plaintiff did not, but disclosed one in rebuttal. The rebuttal report criticized the initial report. This much was procedurally proper. However, it then offered initial opinions about causation. I moved in limine to exclude those opinions as improper initial expert opinions. I relied on many of the cases discussed in the posts linked in the opening paragraphs. The ruling from Judge Cadish? “COURT ORDERED, Motion GRANTED IN PART; opinions discussed in the additional analysis section and the last bullet point of the conclusion section shall be EXCLUDED; Motion DENIED in all other respects.”

The rebuttal expert could criticize the initial expert, but was precluded from offering an initial opinions, such as that the forces involved were sufficient to produce injury. Procedurally I have to believe that is not a good position at trial. The rebuttal expert could only say “the other guy is wrong” without saying what he thinks happened.

All but two of Plaintiff’s treaters were precluded from offering causation testimony.

The second motion in limine sought to exclude all treating physicians from offering causation testimony because they had not been appropriately disclosed as expert witnesses. It was the first one I filed that was heard after FCH1 was decided and then amended.

All of the treaters were disclosed as NRCP 16.1(a)(1)(A) witnesses with this description. “These medical care providers or their representatives are expected to testify regarding Plaintiff’s injuries resulting from the incident, her treatment, prognosis and the cost of the services rendered.” This statement alone is insufficient. Plaintiff later disclosed two of them in her expert witness disclosures with a substantively identical narrative statement.

Dr. Cash is a Board Certified Spine Surgeon and Plaintiff’s treating physician. He is expected, but not limited to testify to the opinions outlined in his records, to any additional opinions that result from the Plaintiff’s continued treatment and will testify and give opinions regarding the care and treatment of the Plaintiff, to spinal cord stimulators, chiropractic care, physical therapy, surgery, therapeutic and/or diagnostic injections of the facets, nerve roots, and/or medial branches. His testimony and opinions will consist of the nature of the Plaintiff’s injuries, Plaintiff’s diagnosis and prognosis, causation of Plaintiff’s injuries and the necessity of medical treatment rendered, the necessity of future treatment to be rendered, the causation f the necessity for past and future medical treatment, and/or his opinion as to past and future restrictions of activities, including work activities, causally related to the subject incident. Dr. Cash’s testimony will also include authenticity of medical records, the cost of past and future medical care, the reasonableness of such costs, and whether those medical costs are reasonable and customary for this community. His testimony will also address any referrals made to other providers and the billing and treatment of same. Dr. Cash will testify regarding documents reviewed outside his medical charts in the court of providing treatment and/or defending his treatment and opinions against the criticisms of experts retained by the Defendant.

I argued these descriptions only summarized generic topics, but did not summarize any actual facts upon which either doctor relied, nor did the descriptions actually state the opinions each doctor would give.  Non-retained expert

disclosures must contain more than a passing reference to the general type of care a treating physician provided.  They must summarize actual and specific opinions.  The disclosing party should provide “a brief account that states the main points” of the entirety of the anticipated testimony.  This does not mean that the disclosures must outline each and every fact to which the non-retained expert will testify or outline the anticipated opinions in great detail. Imposing these types of requirements would make the Rule 26(a)(2)(C) disclosures more onerous than Rule 26(a)(2)(B)’s requirement of a formal expert report.

Hayes v. Am. Credit Acceptance, LLC, 2014 U.S. Dist. LEXIS 110844, 2014 WL 3927277 (D. Kan. 2014). The descriptions provided contained none of that information and hid the ball in that it required my client (aka: me) to sift through hundreds of pages of medical records and then guess what opinions these providers might offer at trial.  The only way to actually know what opinions the treaters held would be to depose them all, which is not the opposing party’s burden. NRCP 16.1(a)(2)(B) instead places the burden upon the disclosing party to provide an appropriate disclosure.

“[I]dentification of the subject matter on which the witness is expected to testify is insufficient to comply with the summary of facts and opinions requirement of Rule 26(a)(2)(C).” Flonnes v. Property & Cas. Ins. Co., 2013 U.S. Dist. LEXIS 74018, 2013 WL 2285224 (D. Nev. May 22, 2013). The disclosures did not give any indication, let alone a summary, of the actual facts upon which the treating physicians intended to rely or who would actually offer the opinions listed.  The disclosure instead merely stated exceedingly broad general topics upon which the physicians might testify.

What did Judge Cadish say?

COURT ORDERED, Motion GRANTED IN PART; Drs. Cash and Sameera shall be permitted to testify as non-retained treating physicians pursuant to NRCP 16.1(a)(2)(b); however, in accordance with that rule as well as Supreme Court’s decision, Drs. Cash and Sameera shall be limited to course of their records, unless they reviewed other Dr.’s records in the course of their treatment; to causation, prognosis, diagnosis within the scope of their treatment and things they reviewed in the course of their treatment as shown by their records produced in the case. As to other treating physicians who were not disclosed pursuant to NRCP 16.1(a)(2)(b); shall be percipient witnesses as limited to testify as to their treatment only.

I take that as a substantive win. I still disagree with the order to concerning Cash and Sameera as misplacing the burden upon the opposing party to determine what a treating physician is going to say at trial. What does this mean for your case in Nevada state court? Your guess is as good as mine.