How to Disclose Non-Retained Experts

Welcome to October. As in 2014, I have decided once again to dedicate this month’s posts to expert witnesses, again making this blog the second coolest thing after Shark Week.

I have repeatedly posted about non-retained experts.[1] The rule for disclosure in federal courts has been in effect since 2010 and Nevada followed in 2012. Yet I continue to see horribly non-compliant disclosures. I suspect this is primarily because attorneys are not paying attention and that is dangerous. Here are three cases that discuss why.

A-12-672128-C: All but $2,563 in medical damages barred from trial.

I was involved in this case. Plaintiff’s only disclosure in the entire case listed every treating physician she had ever seen and said:

This treating physician, PMK and/or COR may offer an expert opinion regarding issues of causation and the injuries Plaintiff sustained in the subject incident and, particularly, his evaluation and the medical treatment provided as a result thereof. They may also testify as to the necessity and costs for future care, if any. They may also offer testimony as to the reasonableness and necessity of Plaintiff’s treatment for the injuries sustained as a result of the subject incident, and that the medical expenses incurred were reasonable and customary in the community.

I requested an order in limine 1) preventing any treater from offering an opinion on causation for failure to disclosure; 2) to prevent any treater from testifying because the jury would never hear anyone say the magic words relating their treatment to the case. The motion was largely a repeat of everything this blog offers on the topic. I got 95% of my request. Judge Hardy’s 11 page order (available online) barred all treaters but one from offering causation testimony. That one treater could only testify about his treatment and its relationship, meaning the grand total of medical damages at trial would be $2,563. The case ended a week later.

A-14-694732-C: Plaintiff’s treaters banned from discussing causation.

I did not handle this case, but my firm did. Plaintiff’s disclosure of her treating physicians was one sentence. “It is anticipated that [treating physician’s name] will testify regarding the injuries sustained by Plaintiff as a result of the subject incidents that occurred on February 21 and 23, 2012.” My firm moved to exclude. Judge Villani ruled, in relevant part:

Plaintiff’s treating physician disclosures merely state that the treating physician will testify “regarding the facts and circumstances of the subject incident that occurred on February 21, 2012, and the injuries sustained therein.” The purpose behind timely Rule 16.1 disclosures is to prevent surprises at trial, requiring all relevant facts and information be provided to the opposing party prior to trial. FCH1, LLC v. Rodriguez, 130 Nev. Adv. Op. 46, 335 P.3d 183, 190 (2014). Therefore, Plaintiff’s disclosed physicians’ testimony shall be limited to Plaintiff’s condition and their treatment of her.

The question about how the treaters could even offer relevant testimony at trial if no one would ever testify about causation was not discussed.

Federal courts exclude treaters too.

MJ Leen addressed the same issue in Langermann v. Prop. & Cas. Ins. Co.[2] Plaintiff disclosed the name, “the contact information for the treating provider and all corresponding medical records from each provider.” The disclosure also stated for each “a ‘person most knowledgeable’ would testify and provided the same description of the subject matter of their anticipated testimony: ‘[s]aid witness will testify to his/her knowledge regarding the medical treatment provided to Marike Greyson resulting from the subject accident.'”

“Defendant did not seek clarification of these disclosures during discovery, indicate that the disclosures were deficient, or conduct any discovery from these providers by subpoena or deposition.” The defendant argued without proper disclosure, it had “no way to determine what opinions the treating physicians will offer. Additionally, without the proper disclosure of the information required [defendant] could not make an informed decision about which, if any, of the witnesses to depose.”

The treaters were barred from offering causation opinion testimony.

These disclosures are insufficient to comply with Plaintiff’s obligations under Rule 26(a)(2)(C). The disclosure contains no information about the facts and opinions on which each provider is expected to testify as required by Rule 26(a)(2)(C)(ii). The disclosure contains only the most generic, unhelpful description of the subject matter on which each provider is expected to present evidence under Rules 702, 703, or 705 Federal Rules of Evidence as required by Rule 26(a)(2)(C)(i) of the Federal Rules of Civil Procedure. Providing voluminous treating provider medical records is simply insufficient to enable Hartford to determine what opinions the treating physicians will offer.

Additionally, Plaintiff has not even attempted to show that the failure to comply with the Rule 26(a)(2)(C) disclosure requirements is substantially justified or harmless. The purpose of the expert witness disclosures is to prevent unfair surprise. The Plaintiff did not disclose a summary of the facts and opinions on which the providers will testify. Plaintiff’s boilerplate conclusory description of their anticipated testimony is woefully inadequate. Identifying the treating physicians and providing Hartford with voluminous medical records does not meet Plaintiff’s disclosure obligations under Rule 26(a)(2)(C), or provide sufficient information to prevent unfair surprise at trial.

Discovery closed March 23, 2015. Hartford filed a motion for summary judgment on April 22, 2015, based in part on arguments Plaintiff failed to disclose any expert who could testify that Ms. Greyson was in an accident and suffered any injury as a result of that accident. Allowing these witnesses to provide medical opinion testimony, even limited to those formed during the course of treatment, would require reopening discovery to prevent unfair surprise, cause Hartford to incur additional costs, delay this case and result in future motion practice.

What does it all mean?

Disclosing non-retained expert witnesses is not hard. If done improperly, courts will exclude the experts. Then all you have is a malpractice claim.

[1] Here, here, here, here and probably more.
[2] 2:14-cv-00982, 2015 U.S. Dist. LEXIS 105378 (D. Nev. Aug. 10, 2015).