A Reminder that Discovery Strategies Matter

Given how few civil cases go to trial, it is too easy to forget that what happens in discovery actually matters at trial.  Finner v. Hurless was apparently an admitted liability but disputed damages case that resulted in a defense verdict.^[1]  The Court of Appeals affirmed the resulting judgment, but only after concluding the district court’s evidentiary rulings arising from certain discovery issues were appropriate.

Was attacking Dr. Lemper’s credibility proper?

• Could he be impeached with his settlement agreement?

A January 3, 2011 a Department of Justice press release announced a settlement with “Brian Lemper, M.D., a Las Vegas anesthesiologist and pain management physician … [that] states that the United States alleged that from October 1, 2004, through August 31, 2007,Lemper submitted or caused to be submitted inflated or overstated claims to the TRICARE and FEHBP programs for surgeries and surgical supplies.”  “Dr. Lemper agreed to pay to the United States $1,258,790.04 to resolve the allegations.”  As described in the press, the settlement agreement restricted Dr. Lemper’s ability to treat patients with certain government health insurance benefits.  This settlement wasn’t exactly a secret.

This settlement arose in Finner v. Hurless because Finner was an Air Force reservist with Tricare health insurance.

During direct examination, Dr. Lemper testified that he did not take “Medicare or government insurances because [he didn’t] believe in a lot of the things they ask you to do.” (Emphasis added.) Later, Finner’s counsel asked Dr. Lemper if he treated Finner on a medical lien. Dr. Lemper testified that he had. Finner’s counsel then asked Dr. Lemper if he had sold Finner’s lien. Dr. Lemper confirmed that he had sold Finner’s lien and went on to testify, “that’s how you get treatment when you get in a car accident and you don’t have any health insurance that somebody would take that can handle you.”

Defendant argued that opened the door to impeaching Dr. Lemper with the settlement.

[T]he district court determined that Dr. Lemper’s testimony, suggesting that he had to treat Finner on a lien because Finner did not have health insurance that he would accept, opened the door to impeachment with the settlement agreement. Consequently, respondents’ counsel asked Dr. Lemper a series of questions concerning the impact of the settlement on his ability to bill Finner’s health insurance. Dr. Lemper refused to concede that the settlement prohibited him from billing Finner’s insurance or that the settlement impacted his decision to stop accepting government-provided health insurances. Counsel then cross-examined Dr. Lemper by reading portions of the settlement agreement to Dr. Lemper that were inconsistent with the doctor’s testimony. The settlement agreement was not offered or admitted as evidence and it was not published to the jury.

The Court of Appeals determined this was not an abuse of discretion.  “Dr. Lemper’s testimony indicated that he did not accept government insurances, including Tricare, as a personal policy and, as a result, he treated Finner on a lien. The district court reasonably determined this testimony opened the door to impeachment concerning whether Dr. Lemper was actually prohibited from billing Tricare.”

• Evidence of non-paying health insurance does not violate the collateral source rule.

Finner in turn argued this evidence violated the collateral source rule.^[2]  Although Plaintiff had not preserved the issue for appeal, the Court of Appeals addressed it anyway.  Plaintiff treated on medical liens and did not use his Tricare health insurance.  As a result the testimony did not violate the collateral source rule.  “[T]he Nevada Supreme Court has not held that evidence of the mere existence of a potential collateral source which has not yet made a payment, might or might not make a payment in the future, or might only make a payment if sued in separate litigation” is sufficient to trigger the collateral source rule.  Applied to the case “Finner never received any payment from his insurance provider, so the questions at issue point to a collateral source of non-payment, a third-party that did not pay at all.”  Accordingly, “the district court did not abuse its discretion in permitting respondents to ask whether Dr. Lemper knew Finner had Tricare health insurance when no payments had ever been made to Finner.”

• Impeachment via prior deposition testimony.

Plaintiff also argued the district court erred by allowing Dr. Lemper to be impeached with documents that were not disclosed in the discovery process.  “Specifically, he argues respondents impeached Dr. Lemper with drug pricing information, Dr. Lemper’s deposition transcript from a different case, and the settlement agreement described above without disclosing these documents before trial.”  As to the drug pricing information “the district court properly permitted respondents to impeach Dr. Lemper with the medication costs provided in Finner’s medical records because they were disclosed in their pretrial memorandum.”  As to the deposition transcript from a different case, the district court barred the defense from using it.  However, I do not read too much into it because it appears the defense did not appeal it.  As to the settlement agreement, the failure to disclose it was harmless error because the defense “brought up the settlement agreement only after Dr. Lemper’s testimony opened the door to this issue.”

How closely must a retained expert’s testimony match the language in the report?

Plaintiff then argued the defense medical expert had testified to “previously undisclosed opinions.”  Plaintiff did not specifically identify on appeal which opinions were “undisclosed,” but the argument focused on whether Plaintiff was “malingering.”  The expert’s report stated “[t]here were no objective neurological findings. Secondary gain was suspected repeatedly,” while at trial he testified “[n]ut after the point of which malingering was suspected and later confirmed, and reconfirmed by my own evaluation, I would say that at that point I can account for none of the symptomology forward because of loss of credibility.”

This was within the acceptable bounds of the opinion.  While the “trial testimony did not exactly mirror the language he used in his report, his testimony did not deviate so far from his report as to amount to providing an undisclosed opinion at trial.”

Sufficient foundation was laid for a biomechanical opinion.

Plaintiff then argued an insufficient foundation was presented to qualify a biomechanical opinion.  The Court of Appeals reviewed the foundation and disagreed.

A chiropractor may only testify within chiropractics.

The district court refused to permit Plaintiff’s chiropractor to testify as a general medical expert, instead restricting his testimony to chiropractics.  That was not an abuse of discretion.

What does this all mean?

It doesn’t mean much since unpublished Court of Appeals decisions may not be cited.  However, the analysis is a reminder as to why decisions made during discovery may affect what happens at trial.

[1] No. 70656, 2018 Nev. App. Unpub. LEXIS 287 (Ct. App. April 25, 2018).
[2] One of the single most widely misunderstood rules of law I encounter.