Tort Shorts

IN COMPLEX PERSONAL injury litigation, such as medical negligence cases, the disclosure of expert witnesses is always a critical event, which until recently was governed by Superior Court Rule 35. Enacted in 1972, this rule adopted essentially verbatim the language of Rule 26 of the Federal Rules of Civil Procedure. Effective July 16, 2004, RSA 516:29-b dramatically changes the law of expert disclosure by adopting, again essentially verbatim, the current language of Federal Rule 26. Leaving aside questions that could be regarding the constitutionality of the statute, this article outlines some of the important features of the new procedure.

The statute sets forth specific disclosure requirements for "a witness who was retained or specially employed to provide expert testimony in [a] case or whose duties as an employee of [a] party regularly involve giving expert testimony." The statute, thus, covers retained experts and in-house experts who regularly testify on behalf of their client. The disclosure must be "accompanied by a written report signed by the witness" containing a complete statement of:

1. All opinions to be expressed and the basis and reasons therefore;
2. The data or other information considered by the witness in forming the opinion;
3. Any exhibits to be used as a summary of or support for the opinion;
4. The qualifications of the witness, including a list of all publications authored by the witness within the last 10 years;
5. The compensation to be paid for the study and testimony; and
6. A listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

RSA 516:29-b, II (a)-(f).

The statute provides that these requirements shall govern "[e]xcept as otherwise stipulated or directed by the court." Parties in their structuring conference may stipulate to follow Rule 35 instead.

The statute requires that the report only be "signed," not "prepared" or "authored," by the witness. In contrast, the federal rule recites that the report "must be prepared and signed by the witness." Although its legislative history is not illuminating on this or other issues, the statute’s omission of "prepared" undoubtedly is intended to give counsel the authority to help draft reports. Counsel may help draft a report even under the federal rule despite its apparent requirement that the report be "prepared" by the witness. The Advisory Committee Notes to the federal rule state:

Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this assistance may be needed. Nevertheless, the report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and the witness must sign it.

A significant issue is whether the statute requires attorneys to obtain a written report beyond treatment records of a physician or other medical provider who testifies to issues of diagnosis, treatment, disability, or prognosis. Because the statute adopts essentially wholesale the language of the federal rule, decisions interpreting the rule should guide our court in resolving this and other construction issues. Sprague v. Liberty Mutual Insurance Co. (U.S.D. N.H. No. 96-375-B) is directly on-point. In Sprague, Magistrate James Muirhead considered whether a treating physician who had not prepared and signed a report under rule 26 could testify beyond factual observations made during the course of treatment. The defendant argued that such a report is required to the extent a treating physician offers "classic expert opinion" testimony. The court adopted the majority rule that no report is required as a condition for a treating physician to testify to opinions concerning causation, diagnosis, prognosis, or the extent of disability where the opinions are based on medical treatment.

Sprague, p. 9. Given that the statute is modeled after the federal rule, our courts should follow Sprague, which is consistent with the federal court majority view. Moreover, given the hostility of some medical providers to participation in court proceedings, a requirement of a comprehensive, signed report for each treating medical witness would often be unworkable, let alone unsupported by the federal precedent.

With respect to the timing of required disclosures, the statute provides:

RSA 516:29-b, III.

Unlike Superior Rule 35, the statute plainly contemplates the disclosure of rebuttal experts.

Whether work product of counsel shared with an expert is discoverable is an unresolved issue in this state. Counsel sometimes take the position that attorney work product disclosed to an expert is discoverable only if it is relied on by the expert. The statute, however, throws a wider net. It requires disclosure of "the data or other information considered by the witness in forming the opinions." This would appear to extinguish any work product protection for information disclosed to experts. Indeed, the Advisory Committee Notes to the federal rule state:

The weight of federal authority appears to agree with the Advisory Committee and holds that otherwise protected work product information considered by an expert in forming opinions must be disclosed. See 8 Wright, Federal Practice and Procedure § 2016.2, at 250 (1994); Mickus, Discovery of Work Product Disclosed to a Testifying Expert Under the 1993 Amendments to the Federal Rules of Civil Procedure, 27 Creighton L. Rev. 773, 808 (1994); Plunkett, Discoverability of Attorney Work Product Reviewed by Expert Witnesses: Have the 1993 Revisions to the Federal Rules of Civil Procedure Changed Anything?, 69 Temp. L. Rev. 451, 483 (1996); Barna v. United States, 1997 U.S. Dist. LEXIS 10853, No. 95 C 6552, 1997 WL 417847 (N.D. Ill. 1997); B.C.F. Oil Ref., Inc. v. Consolidated Edison Co., 171 F.R.D. 57, 66 S.D.N.Y. 1997); Karn v. Rand, 168 F.R.D. 633, 639-40 (N.D. Ind. 1996); Musselman v. Phillips, 176 F.R.D. 194 (D. Md. 1997).

Nonetheless, other courts continue to hold that certain work product information is not discoverable regardless of whether it was considered by the expert. "Having reviewed the relevant case law, the text of Rule 26(a) and (b) and the associated commentary provided by the Advisory Committee, the court holds that ‘the data or other information considered by [an expert] witness in forming [his] opinions’ required to be disclosed in the expert’s report mandated under Rule 26(a)(2)(B) extends only to factual materials, and not to core attorney work product considered by the expert." McGee v. The Paul Revere Life Ins. Co., 172 F.R.D. 627, 642 (Ed. N.Y. 1997); See also Haworth v. Herman Miller, Inc., 162 F.R.D. 289 (W.D. Mich. 1995) (discovery of expert witness opinion bases does not include discovery of mental impressions and opinions of counsel disclosed to retained expert); All West Pet Supply Co. v. Hill’s Pet Prod. Div., 152 F.R.D. 634 (D. Kan. 1993) (same); Joseph, Emerging Expert Issues Under the 1993 Disclosure Amendments to the Federal Rules of Civil Procedure, 164 F.R.D. 97, 103-04 (1996) (arguing that attorney-expert mental impression communications do not constitute "data or other information" within the meaning of Federal Rule 26(a)(2)(B)).

Whether our courts adopt the majority, minority, or perhaps some middle ground on this issue will be decided in the coming years.

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