Calling Out Meaningless Expert Disclosures in Medical Malpractice Cases
The defendant doctor’s style of disclosure is almost always generic in nature and could be used in virtually any case of medical malpractice (i.e. all care provided by Dr. “X” was within the appropriate standard of care and was not a factor in the outcome). No meaningful expert disclosures are made revealing the grounds and reasons for the conclusions reached, in other words, the “why” for the expert opinions.
Indiana Trial Rule 26(E)(1) explicitly requires a party to seasonably supplement their responses (regardless of any request to do so) concerning the opinions, conclusions and findings of any expert witness. This duty is absolute and is not predicated on either a Court order or repetitive discovery requests. Lucas v. Dorsey, Corp., 609 N.E.2d 1192 (Ind. App. 1993). A party is entitled to know the subject matter of the expert’s testimony, the substance of the facts to which the expert(s) will testify, their opinions, and a summary of the grounds for each opinion. In Ferrara v. Balistreri and DiMaio, Inc. (1985), D. Mass., 105 F.R.D. 147, a Defendant requested the Plaintiff state for each expert the name, address, subject matter of their testimony, substance of facts to which the experts would testify, his opinions, and a summary of the grounds for each opinion. In response, the Plaintiff noted for several of the expert witnesses that he had not yet obtained a report setting forth the facts and opinions of the expert but would provide a copy of the same upon receipt. The Trial Court decided that such a response was inadequate under the Federal Rules of Civil Procedure and stated that:
The duty to supplement is a duty to supplement seasonably (original emphasis). Counsel must not postpone supplementation indefinitely by delaying the retaining of experts and expecting that when he will be able to supplement at the last possible moment before trial is to start. Similarly, counsel may not postpone supplementation by not obtaining from the experts which had been retained the information which is to be supplied in answer to expert interrogatories. In the instance case, counsel for the Plaintiffs did both.
Id. at 150.
The Trial Court specifically ruled it was improper to answer this interrogatory concerning experts on the basis that the witnesses’ opinions would be disclosed when counsel for the Plaintiff “obtains” a report. Id. at 150. The Court determined the Plaintiff’s counsel was under an affirmative obligation to procure such information so that he could file full and complete answers to the expert interrogatories, and was not entitled to delay in doing so. Id. at 150. The Court specifically rejected the Plaintiff’s position that he was under no duty to supplement if the experts had not given him the information. Id. at 150-151. As a result of the Plaintiff’s failure to provide such information, the Court excluded the testimony of certain expert witnesses at trial. Id.
This Rule has also been applied even to rebuttal experts. McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993).
No meaningful expert disclosures have ever been in the present case revealing the grounds and reasons for the defense expert’s opinions concerning whether the defendant doctor has breached the standard of care.
A party cannot withhold expert disclosures even if the expert is being presented by way of rebuttal. McCullough v. Archbold Ladder Co, supra. Full disclosure of the “substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion” must be made. Such is required in order for a Plaintiff patient to fairly address a defense doctor’s testimony and determine the areas of questioning required.
Allowing generic disclosures permits the defense to wait until trial and hide in the weeds. This not fair and violates the obligation to provide meaningful disclosures in advance of trial.
I recommend calling the defense out with a motion to compel or seek a protective order when the defense expert disclosures simply state the doctor’s treatment provided met the standard of care.
Posted on November 14, 2021, in Uncategorized and tagged Discovery, expert disclosures, Expert Witness, medical malpractice, Motion in limine, Rule 26(e). Bookmark the permalink. Leave a comment.
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