What if a Non-Retained Medical Expert Did Not Form a Causation Opinion During Treatment?

Can a non-retained medical expert give a causation opinion if it was not formed in the course and scope of treatment?  The Court of Appeals split on that topic recently.

Wynn Las Vegas, LLC v. Nappa was a slip and fall where the plaintiff alleged a shoulder injury that required a surgical repair.[1]  The plaintiff’s first NRCP 16.1(a)(1) disclosure “listed Dr. Martin as a treating physician expected to testify about Nappa’s injuries as well as past and future medical treatment. Nappa did not specifically disclose that he expected Dr. Martin to testify about causation.”  Dr. Martin was deposed and testified he did not reach a “conclusion as to what caused Nappa’s SLAP tear while they were treating Nappa. Dr. Martin also testified that he did not have a specific opinion concerning the cause of Nappa’s injury, at the time of his deposition, but he suggested that Nappa’s fall was one of multiple possible causes.”  After that deposition, Plaintiff served a supplemental disclosure that now indicated Dr. Martin would testify about causation.  The problem was that disclosure occurred three days after discovery closed.

To the shock of no one, Wynn moved to exclude that information.  Dr. Martin was voir dired and this time testified

in his opinion, the fall caused Nappa’s SLAP tear. On cross-examination, Dr. Martin conceded that he had not reached an opinion on the cause of Nappa’s shoulder injury by the time of his deposition, nor had he previously expressed one, and the opinion he intended to offer to the jury—that Nappa’s SLAP tear had been caused by Nappa flailing his left arm as he fell—”was not an opinion that [he] generated during [his] treatment of Mr. Nappa.” Still, the district court concluded that, while it was “a close question,” Dr. Martin could testify about causation.

Wynn appealed that ruling and the Court of Appeals agreed that Dr. Martin obviously had not formed his causation opinion during the course of his treatment.  This meant that an expert report was required for him to testify to causation.

Here, Dr. Martin conceded during his deposition that he did not form an opinion about the cause of Nappa’s SLAP tear during the course of treatment nor did he express an opinion at the deposition. Not only did Dr. Martin reaffirm these concessions during the voir dire examination, he went further by testifying that forming a causation opinion was not necessary at the time of [his] treatment.”  …  Here, Dr. Martin admitted that he did not form his causation opinion during treatment and noted that doing so would not be a part of his normal practice.

The majority concluded this was reversible error.  The dissent accused Wynn of playing games.

In his 16 years as a surgeon, he had only testified one other time. From my reading, it appears that as a result of Dr. Martin’s lack of legal prowess, Wynn’s attorneys cleverly asked questions during court proceedings insinuating that, as a treating physician, Dr. Martin never made “legal causation opinions” during his medical treatment. But, in his attempts to answer the lawyers, Dr. Martin tried to also explain that he generally focuses on treating his patients as a doctor, not rendering formal opinions regarding legal causation as defined by Wynn’s attorneys.  …  Thus, hyper-technical semantics of how a question is posed to a witness by an attorney does not mandate reversal here.

I agree with the majority.  First, Dr. Martin was not disclosed to testify to causation until after his deposition and  three days after discovery closed.  That alone should have merited excluding his causation opinion.  Second, the fact that a particular witness has comparatively little experience testifying does not change the standard that witness’s testimony must meet.  Apparently Wynn’s lawyers asked specific, pointed questions in deposition and voir dire that established Dr Martin had not formed an opinion as to causation until well after the treatment ended.  That isn’t playing games, that is just good lawyering.

[1] No. 71166, 2018 Nev. App. Unpub. LEXIS 265 (Ct. App. April 20, 2018).