Parties Planning to Give Expert Testimony Must File Rule 26(a)(2)(C) Disclosure — Lack of Candor in Retained Expert’s Report Is Grounds for Exclusion under Daubert and Kumho

Martinez v. Garcia, 2012 U.S. Dist. LEXIS 158220 (N.D. Ill. Nov. 5, 2012)

:Martinez's Dkt. No. 158 seeks to bar the two opinion witnesses designated by the "Medical Defendants," Dr. Parthasarathai Ghosh and LaTonya Williams ("Williams"). Those proposed witnesses comprise Dr. Bruce Doblin and the Medical Defendants themselves, and the ground of Martinez's attack is the Medical Defendants' asserted noncompliance with the requirements established by Fed. R. Civ. P. ("Rule") 26(a)(2), as to which Ciomber v. Cooperative Plus, 527 F. 3d 635, 641 (7th Cir. 2008) (citations omitted) teaches:

Failure to comply with Rule 26(a)(2)'s requirements results in sanctions: the offending party is not allowed to introduce the expert witness's testimony as "evidence on a motion, at a hearing, or a trial." This sanction is "'automatic and mandatory'" unless the offending party can establish "'that its violation of Rule 26(a)(2) was either justified or harmless.'"

To begin with the Medical Defendants qua witnesses, there is no question that neither of them complied with the mandate of Rule 26(a)(2)(C), which applies to opinion witnesses who are not required to provide formal written reports:

Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure statement must state:

(I) the subject matter on which the witness is 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.

Indeed, neither of the Medical Defendants themselves signed onto anything at all -- instead their response to the motion in limine (Dkt. 170) was signed by one of their lawyers and stated only this:

Defendants disclosed Dr. Ghosh and Ms. Williams to provide opinions regarding their own medical care and that what they did was reasonable and appropriate. The testimony provided will be consistent with their deposition testimony.

That amorphous characterization -- "consistent with their deposition testimony" -- is totally unsatisfactory. It defeats the entire purpose of opinion witness disclosure, which is aimed at confining the witness' testimony to the specific matters set out in the written report (where one is required) or in the "summary of the facts and opinions to which the witness is expected to testify" (where a disclosure statement, rather than a formal written report, is called for). Quite apart from the question whether a party is well advised to take the deposition [*5] of a witness who has committed himself or herself to specific areas of testimony and the grounds for advancing them (see the article by Gregory Joseph, Expert Approaches, 28 No. 4 Litigation 20 (Summer 2002)), no party may fairly require an adversary to engage in guesswork, rather than particularizing the witness' proposed testimony.

Hence both Medical Defendants have disqualified themselves from rendering opinion testimony, though they may of course take the stand as occurrence witnesses simply to recount what services they performed. That self-inflicted wound is one about which they have no basis for complaint.

As for Dr. Doblin, who was required by Rule 26(a)(2)(B) to provide a written report conforming to the requirements of that portion of Rule 26, Martinez's motion has attached a photocopy of his two-page letter dated June 28, 2011. That report provided the purely informational material called for in Rule 26(a)(2)(B)(iv) through (vi), then summarized Dr. Doblin's proposed opinions in this fashion before going on to a more detailed discussion:

All of the opinions I formed relating to the care and treatment provided by Dr. Ghosh and Ms. Williams are to a reasonable degree of medical certainty. It is my opinion that Dr. Ghosh and Ms. Williams complied with the standard of care and acted in a professional manner in all of their encounters with Mr. Martinez. The basis for this opinion is my review of all medical records and deposition transcripts. There is nothing in the record whatsoever to suggest that Dr. Ghosh or Latonya Williams were deliberately indifferent to Mr. Martinez's medical needs or that Dr. Ghosh or Ms. Williams' care of the patient fell below the standard of care for a physician or physician's assistant practicing general and/or internal medicine.

That statement is extraordinarily troubling. It must be remembered that seven months after Dr. Doblin rendered his opinion this Court issued its January 30, 2012 memorandum opinion and order ("Opinion") that denied the motion of three of the State Defendants for summary judgment, setting out in its Factual Background section the evidence tendered by the litigants with particular reference to the handling of Martinez's grievances by Dr. Ghosh and Williams.

Of course this Court made none of its own factual findings in that respect -- instead it then (as Rule 56 requires) credited Martinez's version of the facts. But in those terms Dr. Ghosh's alleged handling was really appalling. Following the Opinion's Factual Background and legal analysis, its Conclusion (which denied summary judgment) began in this fashion:

In candor, with Martinez's evidentiary submissions credited as Rule 56 mandates, Dr. Ghosh's callous conduct besmirches his medical license (to say nothing of the idealism exemplified by the Hippocratic Oath), while the unthinking robotic handling of grievances by Workman and Garcia could qualify them for lead roles in Karel Capek's classic R.U.R. Moreover, what has just been said is not really dependent on the favorable inferences that Rule 56 dictates must be drawn in favor of the nonmovant -- instead the bulk of the key evidence is uncontroverted or based on documentary materials or both.

As for Warden McCann, despite this Court's full recognition of the many responsibilities imposed on a warden of a correctional institution, it is still difficult to excuse this Warden's violation of the direct personal responsibilities imposed on him by the Code provisions cited here.

What then was Dr. Doblin saying when he referred to "nothing in the record whatsoever"? At best he was making a credibility determination that he was not authorized to make, by accepting the scenario proffered by Dr. Ghosh and Williams and rejecting that offered by Martinez.

That in candor is an abuse of the system. Lawsuits often resolve themselves into a so-called "battle of the experts," in which each side tenders competing opinions from one or more witnesses for consideration by the trier of fact. Sometimes those opinions are seen by the factfinder as driven by who is paying the tariff charged by the opinion witness -- a regrettable phenomenon that gives rise to the pejorative label of "hired gun." But even in such situations an essential precondition to consideration of the competing opinions is that each witness is playing with an unstacked deck -- that the witness is considering and dealing with all of the evidence, not just the portions that fit the expressed opinion.

What has already been said renders Dr. Doblin's opinion unreliable under the standards established by the seminal opinions in the Daubert and Kumho cases. It is not that Dr. Doblin is without credentials -- his CV is impressive -- but that really cuts against rather than in favor of the admissibility of his tainted opinions. It simply will not do for any witness to flaunt his or her credentialed background as though it can make up for the meretricious nature of the announced opinions.

Footnote 1. 1 Matthew 23:27 might well be thought of describing such flawed opinions:

Whited sepulchres, which indeed appear beautiful outward, but are within full of dead men's bones.

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