Last week we praised the S.D Indiana court’s Daubert decision in the Cook IVC filters litigation. Apparently the court is an expert on experts, because it came out with another sensible decision on experts, this time on the use of treating physicians to offer causation opinions. In re Cook Medical IVC Filters Mktg., Sales Practices, & Prod. Liab. Litigation, 2018 WL 5926510 (S.D. Indiana Nov. 13, 2018).

We all know how the expert game works. Each side hires experts (sometimes through an ever-so-helpful expert service), spoon-feeds them the friendliest supporting materials, and plops these walking jukeboxes down in front of a jury to play a catchy tune. Expert testimony, done properly, ends up being a well-rehearsed preview of the closing argument. These experts are usually experienced story-tellers and can parry with the most cunning cross-examiners. The problem is that jurors have a pretty good sense of how this process works. And if they had any doubts that the expert witness is an advocate, such doubts are erased when they learn the expert is making more money that day in court than any juror makes in a month. Thus, it is not surprising to hear from jurors after a case is over that they discounted the expert testimony. (Yes, we acknowledge that the discount might not be as much as the jurors say. It is kind of like how everyone claims that advertising does not affect them.)

Enter the treating physician. Both sides try to enlist the treating physicians as oath-helpers. If a party does manage to get the treater on its side, you can bet that will be a huge point in the closing. E.g., “Throw out all the experts if you want, but you cannot throw out the treater’s opinion. Nobody paid the treater to testify. The only side the greater is on is the patient’s health.” Etc. That is why the depositions of the treating physician is one of the most important moments in a case. That is why we defense hacks hate being in jurisdictions where the defense is forbidden from contacting treaters, but plaintiff lawyers are free to meet with them, shower them with bad company documents, woodshed them, perhaps dangle threats or promises, and, in general, do their best to line up the treaters with their paid experts on crucial issues such as warnings, injuries, and, most of all, causation. The treater’s testimony seems credible precisely because the treater is not retained by either party.

Most of you are familiar with the concept of non-retained experts. But there is probably a non-trivial subset of lawyers unfamiliar with the 2010 amendment to Fed. R. Civ. P. 26(a)(2). That amendment added requirements for disclosing non-retained experts. More specifically, the 2010 amendment added 26(a)(2)(C), providing that a party designating a non-retained experts must issue a summary disclosure stating the subject matter and summary of the facts and opinions to which the witness will testify. Rule 26(a)(2)(C), eight years after its adoption, is still a trap for the unwary. There is a 50% chance that a plaintiff lawyer naming nonretained experts will fail to supply the summary disclosure required by Rule 26(a)(2)(C).

But that is not what happened in In re Cook. The plaintiff did, in fact, make a summary disclosure. That summary disclosure proffered the treating physicians’ opinions that several possible alternative causes did not play a role in the plaintiff’s injury. Those opinions would have been, of course, quite useful for the plaintiff. If the jury is persuaded to rule out alternate causes, the defendant’s product would look more and more like the culprit. So what’s the problem? The plaintiff followed all the rules, right? Wrong. There is an even more fundamental rule, antedating Rule 26(a)(2)(C): non-retained expert treating physicians are limited to opinions formed during the course of providing treatment. The In re Cook court cited a Seventh Circuit opinion, Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010). You won’t have to look too hard to find a similar opinion in whatever jurisdiction houses your litigation. The plaintiff in Cook argued that the treaters were basing their causation opinions on “their training, expertise, and observations during treatment,” but that last bit rang untrue. As the Cook court put it, “The first time these opinions were introduced was during their deposition testimony for purposes of this litigation. It is, therefore, inadmissible.”

Perhaps the plaintiffs could have gotten around this problem by submitting the treaters’ opinions pursuant to the standard expert disclosure process in Rule 26(a)(2)(B) rather than the summary disclosure in 26(a)(2)(C), but that would mean that the plaintiffs would have had to retain the treaters. That probably also means that those treaters would be paid. Bye-bye neutrality/purity. Plus, most plaintiff lawyers are cheap. For that reason, and for the S.D. Indiana’s persistent reasonableness, we are thankful.

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We are also thankful for your attention, comments, and suggestions. We are thankful for another year of smart, supportive clients. We are thankful for judges who work hard, read all the papers, do their utmost to be fair, and, consequently, tell us that we won. Mostly, though, we are thankful for the mashed potatoes on our plate tomorrow. Sure, we adore the Drug and Device Law Family gathered around the table, but there is zero chance that the potatoes will start a political argument. Happy Holiday to you all.