Monday, June 25, 2012

Don't You Just Hate It When....

The other side provides expert "disclosures" that are so vague and generic that they provide no substantive information about what the bases for the expert's opinions (or even the opinions themselves) are?

So do we.

So we're glad to call your attention to the recent decision in Ingram v. Novartis Pharmaceuticals Corp., ___ F.R.D. ___, 2012 WL 2354451 (W.D. Okla. Jun. 19, 2012), where the court slammed the practice and granted a defense motion to compel "disclosures" that were worthy of that description.

Ingram was another Aredia/Zometa case.  Instead of complying with the expert disclosure provisions in Rule 26 (that's Rule 26(a)(2)(B) for retained experts and 26(a)(2)(c) for non-retained (usually treating physician) experts), the plaintiff submitted boilerplate, identical in each instance that:  (1) each retained expert would testify in accordance with prior depositions and their reports; and (2) each non-retained expert would testify in accordance with medical records and depositions.  Ingram, 2012 WL 2354451, at *1.

Wow, that's helpful.

So the defense moves to compel, because such generic garbage blatantly disregarded what Rule 26 disclosures are intended to accomplish.  Fortunately, the court agreed.  As to the retained experts, the court held:
While . . . there may be some logical and practical appeal to plaintiff's mere incorporation of these experts' previous reports or testimony in other venues, the court ultimately concludes that this practice fails to comply with Rule 26's clear terms requiring written disclosures of expert testimony.  For retained experts, the written report itself must contain, among other things, a complete statement of all opinions the witness will express and the basis and reasons for them.  The court finds that reference to other testimony, without providing the complete statement of opinions and basis therefor in a self-contained document is not only insufficient under Rule 26, but is unworkable. The court is not aware of any local practice that would replace this clear requirement of a written report for retained experts, particularly over another party's objection.  In considering this matter, the court agrees with defendant that to allow such a broad designation would require not only the defendant, but also potentially the court, to review and evaluate the previous trial, deposition, and hearing transcripts involving these witnesses in an attempt to learn the basis of the testimony of the named witnesses to see if it conforms to their testimony in this case.  However, the burden of designation is on the plaintiff, not the defendant or the court.



Ingram, 2012 WL 2354451, at *2 (emphasis added).


As to non-retained experts, the court held essentially the same thing:
[E]xpert witnesses who are not required to give written reports must nevertheless provide disclosures which must include the subject matter on which the witness is expected to present evidence. The disclosure must also state a summary of the facts and opinions to which the witness is expected to testify. Again, mere reference to unspecified testimony is insufficient under this standard. Therefore, the court also finds that it would be appropriate for plaintiff to provide a proper disclosure of the expected testimony,
Id.

While the Ingram opinion isn't very long, it concerns a recurrent issue that can use the explication.  Therefore, we (and maybe others) sought its publication, which we're pleased to say will happen.

Congrats again to Joe Hollingsworth and his crew - this time for successfully grappling with a problem common to all of us.

1 comment:

Anne Roberts said...

I totally agree with this post and I found myself laughing as I read your post. It was a good read.