Expert-aganza ’17: Non-Retained Experts Excluded Due to Inadequate Disclosure

Welcome to October and Expert-aganza 2017. As in years past, October’s posts are dedicated to expert witnesses. At this point, maybe Expert-aganza needs its own over-priced tour shirts.

The local federal court has rejected a form disclosure of non-retained experts I still see far too frequently.  Alfaro v. D. Las Vegas, Inc. was a run of the mill personal injury case involving a traffic accident.[1]  Then on Christmas Eve, 2015, the plaintiffs issued their Rule 26(a)(1) disclosure.  It described various non-retained expert disclosures and gave the defendant a gift.

It identified a total of 11 healthcare providers, although several were identified as “person(s) most knowledgeable and/or custodian of records and/or the treating physician or other healthcare provider.”  It then gave an identical description for each.

The aforementioned medical care providers and/or their representatives are expected to testify as treating physicians and as experts regarding the injuries sustained; past, present and future medical treatment impairment; prognosis; disability; pain and suffering; disfigurement; causation; and the reasonableness and necessity of all care and billing as it relates to Plaintiff, as well as the authenticity of their medical records and cost of the services rendered.

The aforementioned medical care providers will opine regarding future treatment, including, but not limited to, spinal cord simulators, chiropractic care, physical therapy, rehabilitative care, fusion surgery and/or therapeutic and/or diagnostic injections of the facets, nerve roots and/or medical branches. Said doctors will also opine regarding other pain management procedures such as radiofrequency ablations, occipital blocks and any other foreseeable medical treatment. Said doctors will also opine regarding all treatment in this case as it pertains to defending their opinions, to include any and all medical treatment as a result of the incident at issue, and any and all medical treatment prior to the incident at issue, and any and all depositions of other medical providers or defense experts, and any and all defense medical reports prepared to attack said doctor’s opinions.

Next, the “disclosure ‘reserves the right’ to call any and all treating physicians, psychiatrists, healthcare providers to testify concerning ‘any and all aspects of the case, including the issues of standard of care, causation and damages.’”  It then said “the custodian of records for all treating physicians and medical providers were expected to testify ‘as to the medical treatment and resulting bills provided to the Plaintiff.’”  The description ended by advising the “‘persons most knowledgeable’ for all of the medical facilities and treating physicians were ‘expected to testify as expert witnesses about the injuries sustained by Plaintiff in the past, present and future medical treatment, bills, injuries, past and future pain, suffering, disfigurement and disability as a result of this incident.’”

A supplemental disclosure later followed that gave a substantively similar description.  Big surprise, the defendant filed a motion to exclude the non-retained experts from trial because they had not been adequately disclosed. Magistrate Judge Leen considered the motion to exclude.  “Plaintiffs claim their initial and supplemental disclosures comply with their Rule 26(a)(2)(C) obligations. The court disagrees.”

First, the disclosures did “not disclose any expert opinions at all. Although the identical disclosures arguably include broad subject matter areas on which each witness is expected to testify or present evidence, they do not include a ‘summary of the facts and opinions to which the witness is expected to testify.’”  The disclosures “not even identify the conditions for which Plaintiffs were treated, their diagnosis or prognosis, or the course of treatment provided.  No information at all is provided linking any injury claimed by either Plaintiff to the accident in this case.”  Magistrate Judge Leen then summed up both the reason lawyers use descriptions like this and why they are problematic.  “The identical descriptions of expected testimony that Plaintiffs provided for all 11 treating physicians and providers are so generic, unhelpful, and boilerplate they could apply to any virtually any case.”  A non-retained expert disclosure “must contain sufficient information to allow opposing counsel to make an informed decision on which, if any, of the treating providers should be deposed, determine whether to retain experts, and conduct a meaningful deposition or cross examination of the witness at trial.”  That did not occur here.

Having concluded the disclosure was inadequate, Magistrate Judge Leen then evaluated how to apply Rule 37(c)(1), barring parties from using evidence that was not disclosed.  Plaintiffs did not confess to error.  Instead “Plaintiffs do not claim that their failure to timely meet the Rule 26(a)(2) disclosure obligations is substantially justified or harmless. Rather, Plaintiffs claim their disclosures are adequate in all respects….”  This argument failed because not complying with the disclosure requirements “unfairly interferes with opposing counsel’s ability to properly prepare the case for deposition and trial. It also thwarts opposing counsel’s ability to determine whether its own experts are required, unnecessarily prolongs litigation, and interferes with the court’s management of its docket.”

Plaintiffs do not claim their failure to disclose was substantially justified or harmless, and disruption of the court’s case management order is not harmless. Plaintiffs’ failure to make the required expert disclosures prejudiced Defendants, who were unable to make informed decisions about which, if any, of the 11 providers and 11 “persons most knowledgeable” from each provider should be deposed, determine whether defense experts were required, or conduct meaningful cross-examination of the experts at deposition or trial. Without the required disclosures, Defendants were relegated to taking depositions of all 11 providers without meaningful information to prepare for cross-examination at deposition or trial.

Magistrate Judge Leen then turned to crafting an appropriate sanction.  She concluded the inadequate disclosure “was willful in the sense it is clear that Plaintiffs intentionally made disclosures designed to give as little information as possible despite the requirements of Rule 26(a)(2)(C).”  One option was to extend discovery.  This “would reduce or eliminate much of the prejudice to Defendants by Plaintiffs’ late disclosures. The court could simply shift the costs of Plaintiffs’ noncompliance to Plaintiffs.”  This option was rejected in favor of exclusion.

Had Plaintiffs made some effort to make the required disclosures, the court might be influenced to impose lesser sanctions. However, as indicated, the disclosures Plaintiffs made in this case were so generic, unhelpful and boilerplate, that they could have been made in virtually any case. Moreover, even in the face of motions to strike and exclude, Plaintiffs steadfastly maintained that they met their disclosure obligations, nothing more was required, and no sanctions were authorized. Lesser sanctions are unlikely to deter Plaintiffs’ counsel from advocating the same position prospectively.

Plaintiffs objected to the district court, continuing to argue the disclosures were compliant.  Judge Du affirmed Magistrate Judge Leen’s ruling.[2]  She too concluded the disclosures

are boilerplate statements that do not reveal any information, let alone a summary of what opinions the witnesses will offer or what facts support these opinions. Of course Torrez’s expert witnesses would be expected to testify that the treatment received was reasonably medically necessary, otherwise Torrez would not have designated the witnesses to testify on his behalf. However, the disclosures do not provide any real opinion, such as the nature of the injuries or treatment or the reason why the treatment was necessary. They also do not provide any summary of facts to support the opinions. As the Magistrate Judge aptly noted, Torrez’s disclosures do not provide enough information to allow opposing counsel to make informed decisions about which providers to depose, how to meaningfully depose them and whether to retain rebuttal experts.

The exclusion sanction was also then affirmed. I presume as the plaintiffs’ entire medical case was excluded, this may have also ended the case.

Alfaro is not a case that should surprise any regular readers.  The decisions are consistent with other local decisions discussed here.  However, I still routinely see non-retained expert disclosures that use similar descriptions and do not comply with either the state or federal disclosure requirements.  Those who continue using them do so at their own peril.

[1] No. 2:15-cv-02190, 2016 U.S. Dist. LEXIS 113949 (D. Nev. Aug. 24, 2016).
[2] Alfaro v. D. Las Vegas, Inc., No. 2:15-cv-02190, 2017 U.S. Dist. LEXIS 116671 (D. Nev. July 26, 2017).