UTAH SUPREME COURT WATCH: TREATING PHYSICIANS NOT REQUIRED TO PRODUCE EXPERT WITNESS REPORTS*
*This article was co-written by Tim Dalton Dunn. Tim is the senior partner at Dunn & Dunn, and an experienced litigator and mediator. He has tried 180 civil jury trials.
On March 15, 2011, the Utah Supreme Court handed down a decision in the case of Drew v. Lee, 2011 UT 15. At issue in Drew is the designation of treating physicians as expert witnesses and the expert witness report requirements of Utah Rule of Civil Procedure 26(a)(3). The Court, breaking with the majority of jurisdictions nationally, adopted a “status-based” approach in determining whether physicians are required to produce expert witness reports pursuant to the rule.
1. Is a treating physician who is not an expert “retained or specially employed to provide expert testimony” required to file a written expert report as required by Utah Rule of Civil Procedure 26(a)(3)(B)?
2. Must a treating physician who is not an expert “retained or specially employed to provide expert testimony” be designated as an expert, and if so, how?
In October 2005, Mr. Drew and Ms. Lee were involved in a motorcycle/automobile accident. Mr. Drew was thrown from his motorcycle and landed on his head. In August 2006, he filed a complaint against Ms. Lee for damages related to the collision. As required by Utah Rule of Civil Procedure 26(a)(3)(A), he identified nine treating medical providers as expert witnesses who might be called to testify at trial. Although he identified these providers as experts, he did not produce any written expert reports pursuant to Utah Rule of Civil Procedure 26(a)(3)(B).
Counsel for Ms. Lee filed a motion in limine to exclude the expert testimony because there were no expert reports. In particular, the defendant argued that the medical providers planned to testify concerning the causation and prognosis of Mr. Drew’s injuries. The defendant felt that this was beyond the scope of Mr. Drew’s care and treatment. If such testimony regarding causation and prognosis was to be allowed, it was argued, the treating physicians should be required to provide written expert reports.
The district court judge agreed with the defendant and granted the motion in limine. Relying on Pete v. Youngblood, 2006 (UT App. 303, 141 P.3d 629 (2006), the district court reasoned that if a treating physician’s testimony goes beyond the scope of mere diagnosis and treatment of the patient, then the physician becomes a “retained expert” and must comply with both subsection (a)(3)(A) by identifying the expert, and with subsection (a)(3)(B) by filing an expert report. The plaintiff filed an interlocutory appeal with the Utah Supreme Court, arguing that treating physicians are exempt from the written report requirements because they are not “retained” experts or “specially employed by parties to testify at trial.”
ARGUMENTS ON APPEAL
The primary issue addressed in the Utah Supreme Court’s decision concerns what it means to be “retained or specially employed to provide expert testimony” such that the written report requirement applies. The defendants argued that the court, applying the holding in Youngblood, should focus on the substance of the expert testimony rather than the status of the expert to determine whether the expert was “retained or specially employed to provide expert testimony.”
The plaintiff, also relying on the holding in Youngblood, argued that because his experts were treating physicians, they were not retained or specially employed to testify as experts at trial, and, as such, Rule 26(a)(3)(B) did not apply, and the only requirement was that he identify them pursuant to Rule 26(a)(3)(A). This, according to the plaintiff, was consistent with the plain language of Rule 26 and the ultimate holding in Youngblood.
ANALYSIS OF PETE v. YOUNGBLOOD
Since both parties relied upon the Utah Court of Appeals decision in Youngblood, the Utah Supreme Court began its analysis by examining the Youngblood decision. In Youngblood, the plaintiff sued her doctor for medical malpractice because the doctor allegedly left surgical gauze packed in the patient’s body. During discovery, the plaintiff designated several of her treating physicians as individuals likely to have discoverable information, but she did not designate any expert witnesses pursuant to Rule 26(a)(3)(A).
The defendant moved for summary judgment on the grounds that the plaintiff had failed to make a prima facie case of medical malpractice because she had not designated an expert to opine as to the standard of care and breach.
The plaintiff responded with an affidavit from one of her treating physicians that included an opinion on the standard of care. Because the plaintiff had not designated the physician as an expert, the district court struck the affidavit and granted summary judgment in favor of the defendant.
In affirming the district court’s ruling, the Court of Appeals held that if a treating physician provides expert evidence under Utah Rules of Evidence 702, 703 or 705, the physician must be identified as an expert under Rule 26(a)(3)(A). The Court of Appeals also held that “to determine if an expert need be identified before trial, [r]ule 26 focuses not on the status of the witness, but rather on the substance of the testimony.”
The Utah Supreme Court determined that Youngblood did not apply to the Drew case. In Youngblood, the plaintiff failed to identify her treating physician as an expert witness. The Court of Appeals specifically did not address the question of whether the treating physician was required to file an expert report under Rule 26(a)(3)(B).
PLAIN LANGUAGE ANALYSIS OF RULE 26(a)(3)(B)
The Utah Supreme Court next turned to an examination of the plain text of Rule 26(a)(3)(B). In doing so, the Court determined that the rule specifically contemplates two different classes of experts: those retained or specially employed to give testimony in the case, and other witnesses who may qualify as experts but are not retained or specially employed to testify at trial. The Court went on to define the term “retained or specially employed,” concluding that “these designations suggest that a ‘retained or specially employed’ expert is a person who a party hires and pays to express a particular expert opinion for the purposes of litigation.”
The Court acknowledged that while this definition appears relatively straightforward, its application can be tricky, as, generally, all experts are hired and compensated for their trial testimony. In order to further distinguish the “retained or specially employed” experts from other experts who testify at trial. The Court looked to interpretations of Federal Rule of Civil Procedure 26, which is substantially similar to the Utah rule.
The majority of jurisdictions apply what is commonly known as the “substance-based” approach to the rule, focusing on the content or scope of the expert’s testimony, rather than the status of the individual as a treating physician, in order to assess whether the expert report requirement applies. This requires the trial court to “evaluate the proposed testimony on a case-by-case basis to determine whether the physician’s opinion is based on the care and treatment of the patient or if it was formed from outside sources of information.” If the testimony is the former, no expert report is required; if the testimony is based on matters learned outside the scope of treatment, an expert report is required.
The main problem with this approach, the Court argued, is the vast disagreement among jurisdictions regarding what information falls within the scope of care and treatment of a patient. Three different interpretations exist. The majority view is that causation and prognosis are inseparable from a physician’s care and treatment, and therefore no expert report is required for the physician to opine on these issues. Other jurisdictions always require a physician to file an expert report in order to testify concerning causation and prognosis. Still other jurisdictions adopt a case-by-case approach, allowing testimony concerning causation and prognosis only if a determination is made that the opinion was not acquired or developed in anticipation of litigation or for trial. The Court therefore decided that the application of the “substance-based” approach is often inconsistent, unpredictable, costly and time consuming.
Instead, the Court adopted a “status-based” approach to physician testimony as a bright-line rule. Physician experts are divided into two categories: (1) those physicians the party visited for purposes of medical treatment; and (2) other physicians who are “specially retained or employed” for the purposes of litigation. Those physician experts in the first category will not be required to produce written expert reports, while those in the second category will be required to do so.
Adopting this “status-based” approach will make the distinction simple in the vast majority of cases. But in some cases, the distinction may be blurred. In such cases, the Court provided a “non-exhaustive” list of relevant questions to aid the district court in the determination:
1. Why did the party visit the physician?
2. How proximate to the litigation was the party’s visit to the physician?
3. Was the party sent to the physician by his or her attorney?
4. How did the physician’s office code the patient’s visit for insurance purposes?
5. Does the physician have a history of serving as a retained expert witness at trial?
SAFEGUARDS TO PREVENT ABUSE
The Court also held that several safeguard already exist to prevent potential abuse of this “status-based” approach, and ensure that opposing parties have a reasonable opportunity to prepare an effective cross-examination at trial:
1. Parties will still be required to identify their experts pursuant to Rule 26(a)(3)(A).
2. If a party fails to disclose a witness as required by Rule 26(a), Rule 37 permits opposing parties to move to compel discovery and seek appropriate sanctions, including the exclusion of the witness.
3. Opposing parties may depose a treating physician to discover the content of the physician’s testimony.
4. Opposing parties may subpoena medical records to learn additional information regarding the physician’s treatment of the patient.
5. Treating physicians must still meet the requirements to qualify as an expert witness under Utah Rule of Evidence 702, and may not testify to matters beyond the expert’s own knowledge, skill, experience or specialized training.
7. Utah Rule of Civil Procedure 11 allows courts to impose sanctions on attorneys and parties who make false representations to the court.
It is interesting to note that the Court specifically mentions the use of Rule 11 sanctions, stating that “the weighty consequences of skirting disclosure requirements should be sufficient to caution parties and counsel against bad faith noncompliance with this rule.” This may be seen as an invitation to trial courts to impose such sanctions where they believe Rule 26 is being evaded or manipulated.
THE NEOPHYTE LAWYER’S VIEWS
In summary, the Utah Supreme Court adopts a bright-line “status-based” approach to Rule 26(a)(3)(B) inquiries. According to the Court, this approach is the most practical and fair interpretation of the rule, and will lead to consistent application and results. Under this analysis, the “plain language” of Rule 26(a)(3)(B) does not “require a party offering treating physician testimony to file expert reports, even if those physicians are testifying about causation and future prognosis.”
The Court also did not disturb the ruling in Youngblood. Treating physicians must be identified as expert witnesses in a party’s Rule 26(a)(3)(A) designations. Failure to do so may result in the treating physician’s exclusion pursuant to Rule 37
This decision is beneficial to both plaintiffs and defendants. It allows for physicians to testify as expert witnesses without incurring the additional costs of producing expert witness reports. And the safeguards discussed by the Court should provide more than adequate protection against abuse by either party.