Editor's note: Previously posted at Jim Beck's blogsite, http://druganddevicelaw.blogspot.com.

New Amendment To Rule 26 Concerning Expert Disclosures

If you're involved in drug and device (or any) product liability litigation, you're dealing with expert witnesses.  And if you're dealing with experts, you'll want to think about the proposed amendments to Fed. R. Civ. P. 26 that (if all goes smoothly) could go into effect on December 1, 2010.

They deal essentially with two things:  (1) what expert witness productions and privileges, and (2) what to do about independent witnesses qualified to offer expert opinions.

Both are very interesting.

As to expert witnesses, we've blogged before (all right, not us, but a guest post) about some of the gamesmanship that goes on with respect to the production of material that an expert "considered" - including drafts of expert opinions - under the current draft of Fed. R. Civ. P. 26(a)(2)(B), which mandates broad disclosure and contains a comment that most courts have interpreted as overriding work-product and even attorney-client privileges with respect to anything that's shown to an expert, even if the expert does not rely.

That language, and how courts interpreted it, led to a log of unintended consequences.  There's the litany of questions at expert depositions about every meeting the expert has had with counsel, what notes were taken, and what drafts exist.  There's the engagement of two parallel sets of experts, with one set designated as "consulting" (that is, non-discoverable), so that attorneys can interact with at least one set of experts in peace - and then, when everything's done, the "testifying" expert adopts the product of all that as his/her pristine report.  There's so much gamesmanship that, in a lot of cases, the parties agree to stipulate out of this language.  Why is all this done?  Because every now and then, some lawyer screws up and the other side gets really valuable.  See, e.g., Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460 (E.D. Pa. 2005), for a cautionary tale.

Anyway, after 12/1/10, a lot of this (although probably not all) should be a thing of the past.  The rules committee has amended Rule 26(a)(2)(B) to limit expert disclosures to "facts or data" (not the broader term "information") that the witness considered.  The new draft specifically recognizes work product privilege for drafts and attorney communications with experts with a couple of exceptions in an entirely new section, Rule 26(b)(4)(B-C).  Here's the new language in toto:
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.

Thus the only exceptions to the scope of the privilege are compensation (including compensation over the entire course of related litigation), what the attorney gave the witness to consider (so we'll still be able to establish if the attorney did the expert's research for him/her), and what assumptions the attorney told the expert to make (so we'll still be able to establish if the attorney did the expert's thinking for him/her).
All the other stuff - draft reports, notes, oral conversations, etc. - are now explicitly protected from discovery by the work product doctrine and the usual requirements of that doctrine.  That means that attorneys on both sides can talk to their experts unimpeded, let them take notes, let them prepare drafts, edit those drafts, etc., free from fear of inadvertent disclosure, gotcha games and all the rest the current version of Rule 26 has engendered.   In short, it will no longer be necessary to treat experts as if they were radioactive.

It also marks the final recognition by the Rules Committee of the role that expert witnesses play in modern litigation - that they're a part and parcel of a party's case and not part of some sort of independent search for the truth.  For those seeking utopia, there's still the option of a court appointed expert under Rule 706, but experts are now essentially no different than co-counsel, legal assistants, and the like as far as work product is concerned.

A few other things to think about with this new rule.  First, it's not retroactive, and the earliest it could go into effect would be December 1, 2010.  Increasingly, as we get closer to this deadline, we'll have to keep it in mind when considering discovery scheduling.  We're on our own until then.  Second, there doesn't seem to be any intent to affect substantive Daubert decision-making.  The stuff necessary to establish that an expert has abdicated his research or reasoning to the attorney is still discoverable.  Third, since some parts of expert notes might be discoverable under the exceptions in new Rule 26(b)(4)(C), it's probably a good idea to have the expert designate specifically when any notes are of conversations with retaining counsel.  It's still a good idea to take that sort of rudimentary precaution to make assertion of privileged status easier.

That's one part of the amendment to Rule 26.  The other has to do with designation of experts who are not retained by parties.  In our neck of the woods that usually means treating physicians and other health care providers.  There's a new section, Rule 26(a) (2) (C) that provides that non-retained experts don't have to provide reports to be entitled to give opinions.  The attorney designating such a witness simply has to describe the anticipated testimony:

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness 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.
This rule is intended to make it easier to get opinion, as well as fact, testimony from persons such as treating physicians (but also employees of corporate parties) who aren't being paid for their testimony and thus can't be expected to jump through the hoops erected for retained experts.  It's expected to put a halt to the "you can ask facts but not opinions" fights that currently crop up at depositions of this sort of witness.

The new Rule 26(a)(2)(C) draws no distinctions between the sides.  Thus, defendants are as free to designate and describe the opinion testimony of plaintiffs' treating physicians as plaintiffs are.  The amendment commentary states:
A witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705.  Frequent examples include physicians or other health care professionals and employees of a party who do not regularly provide expert testimony.  Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure required under Rule 26(a)(2)(C). The (a)(2)(C) disclosure obligation does not include facts unrelated to the expert opinions the witness will present.
Rules Appendix at C-29.

That's got us thinking.  Well, if we can freely designate treaters as expert witnesses, then it follows that we can talk to them, doesn't it?  With the federal rules now explicitly recognizing both sides' equal rights to call treaters as experts for the first time, this amendment should lend additional force to what's already the majority rule:  that state-law procedurally restrictions on defendants talking to treaters - other than privileges (which are usually waived by a plaintiff's filing suit) - are inapplicable in federal court.  We've discussed that rule before here.  And, as we've also discussed before, HIPAA expressly exempts the "lawful process" of "judicial proceedings" from its scope

We offer no predictions on the ultimate result, but we've now got another arrow in our quiver in our search for equal rights to informal interviews of treating physicians.

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