In a decision rendered January 14, 2020, the United States District Court for the Eastern District of Louisiana significantly limited the testimony of plaintiff’s medical experts in a personal injury suit. The presiding judge found that plaintiff had not complied with Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure (FRCP), in that, plaintiff only produced the treating physicians’ medical records and no other disclosures regarding their expected testimony.
Matthews v. Amtrust Grp., Ins. – The Facts
The case, Matthews v. Amtrust Grp., Ins., 2020 WL 206186 (E.D. La. 2020), stemmed from an automobile accident in which a commercial driver changed lanes on Chef Menteur Highway in New Orleans, striking a vehicle operated by the plaintiff.
In responding to the defendants’ discovery requests, plaintiff produced his medical records from his treating physicians. Following a scheduling conference, the court set deadlines for expert discovery and disclosures. Plaintiff made no other disclosures regarding the expected testimony of his treating physicians other than producing their records, and the deadline lapsed. Plaintiff then filed a witness list, which listed his treating physicians as witnesses, but he again did not make any disclosure regarding their expected testimony.
Defendants then sought to exclude any opinion testimony of the treating physicians, particularly as to medical causation, for failure to make FRCP Rule 26(a)(2)(C) disclosures. Plaintiff argued that producing his medical records was sufficient to comply with FRCP Rule 26(a)(2)(C).
The Law on Expert Disclosure in Federal Court
The court began its analysis by pointing out that FRCP Rule 26(a)(2) governs the disclosure of expert testimony and noting that an expert that is retained by a party for purposes of litigation is required to provide an expert report pursuant to FRCP Rule 26(a)(2)(B). Prior to 2010, non-retained experts, such as treating physicians, were exempt from FRCP Rule 26’s expert reporting requirements. However, in 2010, FRCP Rule 26(a)(2)(C) was added, which provides a modified disclosure requirement applicable to non-retained experts, such as treating physicians.
FRCP Rule 26(a)(2)(C) requires that a party, with respect to a non-retained expert, provide a written disclosure stating: “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” The rule does not require overly comprehensive disclosure, but it does require disclosure in at least some form in order to provide opposing parties the opportunity to prepare for effective cross-examination and to arrange for testimony from other experts, if necessary. The court then turned to FRCP Rule 37, which requires mandatory and automatic exclusion for failure to comply with disclosure deadlines.
Plaintiffs’ Treating Physicians’ Opinion Testimony on Medical Causation Excluded
The district judge found that plaintiff failed to comply FRCP Rule 26(a)(2)(C). Although he provided his medical records from his treating physicians and included their names on his witness list, he did not provide any description or summary of their opinions or expected testimony on medical causation or the facts on which those opinions relied. He did not make any effort to disclose timely where in the medical records defendants might find such information.
The court concluded that “providing medical records and expecting defendants to search for the opinions that may be contained therein does not satisfy Rule 26(a)(2)(C), and [plaintiff] has not offered any justification for his failure to comply with the rule or any explanation of why such failure is harmless.” The treating physicians’ opinion testimony on medical causation was therefore excluded under FRCP Rule 37.