Strategic Ways to Exclude or Limit a Defense Doctor

Pursuant to Fed. R. Civ. P.26(A)(2)(B), Defendant’s retained expert is required to produce a list of all of the witness’ prior testimony in the preceding four years.  “[T]he list of cases in which the witness has testified should at a minimum include the name of the court or administrative agency where the testimony occurred, the names of the parties, the case number, and whether the testimony was given at a deposition or at trial.” Coleman v. Dydula, 190 F.R.D. 316, 318 (W.D. N.Y. 1999) (emphasis added); Hilt v. SFC, Inc., 170 F.R.D. 182, 185 (D. Kan. 1997); Majewski v. Southland Corp., 170 F.R.D. 25, 27 (D. Kan. 1996); Nguyen v. IBP, Inc., 162 F.R.D. 675, 682 (D. Kan. 1995).

More times than one might imagine, we run into defense retained doctors who fail to keep a Rule 26 list of testifying history.  Whether by intent or simple oversight, this presents a strategic advantage to you in either taking their deposition or limiting them at trial.  Recently, we took a deposition of a defense orthopedic doctor who testified that he was unaware of the requirement to keep a Rule 26 list and had made no effort otherwise to track his testifying history.

Rather than do anything immediately after his deposition, we waited until the week before trial to move to strike or in the alternative limit the evidence in the case.  In Coleman v. Dydula, 190 F.R.D. 316, 318 (W.D. N.Y. 1999), the plaintiff’s expert provided only a list of names for the years 1994 through 1998, purporting to identify the expert’s former testimony. In an opposing affidavit, the expert stated that he had not kept the information in the past and that he does not maintain such records. Id. at 318. The Court rejected this argument. Indeed Coleman held:

The reasons given for noncompliance are unpersuasive. Failure to provide this information in the past does not justify failure to comply with Rule 26(a). It would strain credulity to think that Dr. Reiber [the expert] has no records of the cases other that the clients’ names. Certainly he must have billing records and client files from which he could gather the required details. Id.

The Coleman court reasoned that the purpose of providing a list of the expert’s former testimony is to enable the opponent to obtain prior testimony; and nothing in Rule 26 shifts the burden to the discovering party.Id. Given the rule and case law you would have two options: (1) move to exclude the expert entirely; or (2) move to limit the testimony in the case.  We did both in an alternative motion.  We asked to exclude the expert, expecting the Court not to go that far.  However, in the alternative, we asked that the Court limit the testimony of testifying history of our experts—i.e. that the defense be prohibited to inquiring into any of our expert’s potential bias.

Because we were unable to fully cross examine the defendant’s doctor on bias, the Court thought it was reasonable to they not be able to walk our witnesses through that line of questioning.  On balance, when you have a treating doctor that has seen your client repetitively, and a defense doctor that has only seen them once, the jury tends to side with the treating doctor.  This led to a successful jury trial for the plaintiff.

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