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August 16, 2012 Articles

Disclosure Obligations for Unretained Experts

By Courtney A. Solomon

Effective December 1, 2010, Federal Rule of Civil Procedure 26 was amended to, among other things, add a new subsection (a)(2)(C) requiring additional disclosures for unretained testifying experts. Prior to the 2010 amendment, unretained testifying experts were subject only to the disclosure obligation under Rule 26(a)(2)(A)—in other words, disclosure of the witness’s “identity.” Only those expert witnesses who were “retained or specially employed to provide expert testimony in the case” or “whose duties as the party’s employee regularly involve[d] giving expert testimony” were required to submit a written report. Fed. R. Civ. P. 26(a)(2)(B).

Under the new rule, a party must identify “the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705,” and provide “a summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). While the new rule imposes additional disclosure obligations with respect to unretained experts, the Advisory Committee notes instruct that “Rule 26(a)(2)(C) [wa]s added to mandate summary disclosures” and “[c]ourts must take care against requiring undue detail” in the disclosure, “keeping in mind that these witnesses have not been specially retained and may not be as responsive to counsel as those who have.” Fed. R. Civ. P. 26(a)(2)(C) Advisory Committee’s note, 2010 amendment.

How much and what type of disclosure is sufficient under the new rule? May a party provide documents—for instance, a treating physician’s medical records—in lieu of a summary? The burgeoning case law surrounding Rule 26(a)(2)(C) has begun to provide us with answers to these questions.

Broad Summary Disclosure Is Generally Sufficient
To date, several courts have deemed broad summary disclosures sufficient to satisfy Rule 26(a)(2)(C).

For instance, in Estate of Lance v. Lewisville Independent School District, No. 4:11-cv-00032, 2012 U.S. Dist. LEXIS 66190 (E.D. Tex. May 11, 2012), the defendant identified, among others, its executive director of special education as a nonretained expert and indicated that the expert “w[ould] testify regarding the provision of special education services to students, and specifically how those services were provided to [the plaintiffs’ deceased child].” This testimony would be “based mainly on the personal observations, professional experience, education, and training” of the nonretained expert. Id. at *6, *8–9. The court held that defendant’s disclosure satisfied Rule 26(a)(2)(C). Id. at *9.

Likewise, in Nagle v. Mink, No. 10-cv-1935, 2011 WL 3861435 (D. Colo. Aug. 29, 2011), the court deemed sufficient the plaintiff’s disclosure indicating that his treating physicians “‘w[ould] provide an opinion on Plaintiff’s diagnosis of diabetes . . . [and] on how diabetes affects a person’s major life activity, specifically one’s ability to work,’” as well as “‘[their] observations on how diabetes has affected the Plaintiff.’” These opinions were based on the physicians’ “‘review of Plaintiff’s medical history; specific conversations . . . with the Plaintiff and [the physicians’] experience as . . . medical doctor[s] diagnosing and treating diabetes.’” Id. at *1, *6.

Broad Summary Disclosure Cannot Be Threadbare
Some courts have, however, rejected Rule 26(a)(2)(C) disclosures where the disclosures are vague and threadbare.

Most recently, a federal court in New York rejected a Rule 26(a)(2)(C) disclosure pertaining to the plaintiff’s treating physicians who “were expected to present evidence . . . , including their conclusions that the defendant’s employees were negligent,” where the disclosure regarding one physician simply “refer[red] to ‘numerous operations’ that were performed rather than specifying the nature of each of the operations” and did “not make clear whether the doctor’s conclusion that ‘the perforation and deadly infection were caused by negligence’ was based only on the minimal facts included in the summary,” and the disclosure regarding the second physician “contain[ed] no facts supporting her opinion that the seriousness of the infection was caused by the defendant’s negligence.” Sapienza v. U.S. Dep’t of Veteran’s Affairs, No. 09-cv-1224, 2012 U.S. Dist. LEXIS 75928, at *1–2, *4–5 (E.D.N.Y. May 31, 2012).

Likewise, a disclosure stating that “twelve non-retained ‘treating physician experts’ . . . ‘will present factual and opinion testimony on causation, diagnosis, prognosis, [and] extent of [the plaintiff’s] disability based on the expert’s treatment or radiological review of [the plaintiff’s] medical records’ . . . does not comply with Rule 26(a)(2)(C),” as the “disclosure fails to include any facts on which the . . . non-retained experts will rely, nor does it state the opinions to which they are expected to testify.” Pineda v. City & Cnty. of San Francisco, No. 11-cv-0457, 2012 WL 822259, at *6 (N.D. Cal. Mar. 9, 2012); accord Davis v. GEO Grp., No. 10-cv-2229, 2012 WL 882405, at *3 (D. Colo. Mar. 15, 2012) (disclosure stating only that the plaintiff’s treating physician “‘is expected to offer testimony about his evaluation of Plaintiff and Plaintiff’s emotional distress related to his work for and discharge from employment at [the defendant company]’” does not comply with Rule 26(a)(2)(C) because it “states nothing about the facts and opinions to which [the physician] will testify”); Burgess v. Fischer, No. 3:10-cv-24, 2012 WL 1856586, at *1 (S.D. Ohio Mar. 2, 2012) (disclosure identifying six physicians stating only that they each “examined or treated [the plaintiff’s] injuries, ‘and may be called to testify regarding [the plaintiff’s] injuries and damages’ . . . insufficient to comply with Civil Rule 26(a)(2)(C)”).

Documents in Lieu of Summary Are Insufficient
Several courts have held that disclosures consisting solely of voluminous documentary material do not satisfy Rule 26(a)(2)(C) precisely because the disclosure neither identifies the specific “subject matter” nor provides a “summary of the facts and opinions to which the witness is expected to testify.” See, e.g., Ballinger v. Casey’s Gen. Store, Inc., No. 1:10-cv-1439, 2012 WL 1099823, at *4 (S.D. Ind. Mar. 29, 2012); Kristensen v. Spotnitz, No. 3:09-cv-00084, 2011 WL 5320686, at *2 (W.D. Va. June 3, 2011); Nicastle v. Adams Cnty. Sheriff’s Office, No. 10-cv-00816, 2011 WL 1674954, at *1 (D. Colo. May 3, 2011).

In Ballinger, for instance, the plaintiff identified one of her treating physicians in the Rule 26(a)(2)(A) disclosure and also provided to defendants all of her medical records, contending that such production satisfied Rule 26(a)(2)(C). 2012 WL 1099823, at *1, *3. The defendants and the court disagreed. Id. at *1, *4. “[A]llowing a party to ‘go beyond’ the requirements of Rule 26(a)(2)(C) by providing medical records in lieu of a summary would invite a party to dump a litany of medical records on the opposing party, contrary to the rule’s attempt to extract a ‘summary.’” Id. at *4. While a patient’s “medical records touch on the subject matter of a treating physician’s testimony, the records do not necessarily provide an accurate or complete summary of expected testimony since medical records are not typically created in anticipation that those records would be used as a witness disclosure.” Id.

Likewise, in Kristensen, the court rejected the notion that “disclosing the complete records of the treating physician at issue” satisfied Rule 26(a)(2)(C), 2011 WL 5320686, at *2, but found that a disclosure explaining the physician had “treated [the plaintiffs] ‘for significant psychiatric problems, which . . . stemmed from the family problems in dealing with the mold exposures,’ . . . [and that the doctor would] testify to [one plaintiff’s] ‘adverse emotional and psychological impacts as a result of mold problems’ and ‘the temporal relationship between the Mother and child’s problems and the problems in the home’”—in combination with the medical records—sufficiently identified the subject matter and summarized the facts and opinions to which the expert intended to testify. Id. at *3.

Further, in Nicastle, the defendant sought to call several employee witnesses to testify about the “propriety of discipline imposed on . . . and the adequacy of due process provided to” the plaintiff and disclosed that the testimony would be based on facts included in the plaintiff’s “internal affairs investigation files and [his] personnel file,” which amounted to “approximately 963 pages plus audio recordings and transcriptions.” See Nicastle, 2011 WL 1674954, at *1. Like Ballinger and Kristensen, the court rejected the disclosure as antithetical to the clear language of Rule 26(a)(2)(C), which requires a summary. Id. (“Designation of such a prodigious volume of material does not constitute a summary of the facts to which the witnesses will testify within the meaning and requirements of Rule 26(a)(2)(C).”). To satisfy Rule 26(a)(2)(C), the disclosing party must “summarize” those “particular facts” in the larger body of material that pertain to the witness’ expected testimony. Id.; Cf. Silgan Containers v. Nat’l Union Fire Ins., No. 09-cv-5971, 2011 WL 1058861, at *9 (N.D. Cal. Mar. 23, 2011) (identifying specific subject matter for testimony—such as “[t]he cause of the corrosion in the defective tomato cans”—and providing “a brief summary of the facts and opinions about which [the plaintiff] expects the witnesses to testify and 31 pages of deposition excerpts corresponding to each witness” satisfied Rule 26(a)(2)(C)).

Where, however, a lesser volume of material is disclosed—and the material itself is a sort of summary—and the witness’s testimony is limited “to the subject matter, facts and opinions incorporated” in those documents, at least one court has accepted the disclosure as sufficient under Rule 26(a)(2)(C). Crabbs v. Wal-Mart Stores, Inc., No. 4:09-cv-00519, 2011 WL 499141, at *1 (S.D. Iowa Feb. 4, 2011) (disclosure of a physical therapist’s “written functional capacity evaluation,” as well as “associated test results, physical exam notes, and history,” are sufficient to comply with Rule 26(a)(2)(C)).

The case law to date suggests that courts have interpreted the language of Rule 26(a)(2)(C) quite literally and generally in accordance with the Advisory Committee’s notes, explaining that the summary disclosure under Rule 26(a)(2)(C) is intended to be “considerably less extensive than the report required by Rule 26(a)(2)(B)” and does not require “undue detail.” Fed. R. Civ. P. 26 Advisory Committee’s note, 2010 amendment. Broad disclosures are generally sufficient, so long as they provide the adversary a true summary of the subject matter, facts, and opinions about which the witness will provide expert testimony, and disclosing documents in lieu of a summary is, with a narrow exception, not sufficient. Counsel is well-advised to continue monitoring the developing case law surrounding disclosure requirements for unretained experts pursuant to Rule 26(a)(2)(C).

Keywords: litigation, mass torts, Federal Rule of Civil Procedure 26(a)(2), Advisory Committee, unretained experts, disclosure obligations

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