Opinion
22-CV-9666 (VSB) (RWL)
07-15-2024
MARK AYOTTE, KEN MAUER, and JASON PHILLIPS, Plaintiffs, v. THE NATIONAL BASKETBALL ASSOCIATION and NBA SERVICES CORP., Defendants.
ORDER
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
This order resolves Defendant NBA's letter motion at Dkt. 140 to compel Plaintiffs to produce communications between Plaintiffs' counsel and non-retained expert Dr. Norman Goldwasser. Dr. Goldwasser is Plaintiff Ken Mauer's treating psychologist. Plaintiffs have disclosed, pursuant to Fed.R.Civ.P. 26(a)(2)(C), that Dr. Goldwasser will testify that Mauer suffered from emotional distress due to termination from his employment as a referee. Plaintiffs claim that the communications between Plaintiff's attorney and Dr. Goldwasser are protected from disclosure as attorney-client communications and attorney work product because Plaintiffs' counsel represents Dr. Goldwasser in connection with his involvement in the case.
Non-retained experts like Dr. Goldwasser are percipient witnesses who also are asked to provided opinions; they are in essence hybrid fact and expert witnesses. See Caruso v. Bon Secours Charity Health Systems, Inc., 703 Fed.Appx. 31, 33 (2d Cir. 2017) (describing distinction between retained and non-retained experts as one “between an expert who happened to have personal involvement with the events giving rise to litigation and an expert whose only involvement consists of aiding the already-initiated litigation”). Examples include employees with a particular expertise, or consultants or contractors who participated in some part of the factual events underlying the litigation. Retained experts, in contrast, are persons retained specifically to provide expert opinions in litigation or employees whose job regularly involves testifying.
Under the Federal Rules of Civil Procedure, the disclosure obligations for retained and non-retained testifying witnesses are different. Disclosure requirements for retained testifying experts are governed by Fed.R.Civ.P. 26(a)(2)(B). Such experts must produce a report explaining in detail the bases and reasons for their opinions and identifying all the facts and data they considered in forming their opinion. They must also include any exhibits that will be used to summarize or support her opinions, and also details concerning their qualifications, past expert testimony, and compensation. Fed.R.Civ.P. 26(a)(2)(B)(i)-(vi). Non-retained experts, in contrast, need only provide a disclosure of the subject on which they intend to testify and a summary of the facts and opinions they intend to provide. Fed.R.Civ.P. 26(a)(2)(C)(i)-(ii).
In 2010, the federal rule for expert disclosure was amended to address, among other things, disclosure of communications between a retained expert and counsel retaining the expert. Specifically, the amendment provided work product protection for drafts of a retained expert's report and, with certain exceptions, communications between the party's attorney and the expert. See Fed.R.Civ.P. 26(b)(4)(C)(i)-(iii). The same protections were not extended, however, to communications with non-retained testifying experts. At the same time, “[t]he rule does not exclude protection under other doctrines, such as privilege or independent development of the work-product doctrine.” Fed.R.Civ.P. 26(b) advisory committee's note to 2010 amendment. The determination of whether work product protection and attorney-client privilege have been waived with respect to a non-retained expert thus should be determined on a case-by-case basis.
Among the dozen or so published decisions analyzing the issue, ones can be found requiring attorney communications with non-retained experts to be produced, and others, though fewer, can be found denying production. Compare, e.g., Oasis Medical, Inc. v. Biocia, Inc., No. CV 21-08879, 2024 WL 1424930, at *6 (C.D. Cal. March 28, 2024) (ordering production of communications between counsel and non-retained expert); Ramaco Resources, LLC v. Federal Insurance Co., No. 2:19-CV-00703, 2020 WL 5261320, at *3 (S.D. W.Va. Sept. 3, 2020) (same); United States ex rel. Rigsby v. State Farm Fire & Casualty Co., No. 1:06-CV-433, 2019 WL 6792774, at *2 (S.D.Miss. Dec. 12, 2019) (same); City of Wyoming, Minnesota v. Procter & Gamble Co., No. 15-CV-2101, 2019 WL 245607, at *5-6 (D. Minn. Jan. 17, 2019), R. & R. adopted in relevant part sub nom., 2019 WL 4897191 (D. Minn. May 28, 2019) (same); Luminara Worldwide, LLC v. Liown Electronics Co. Ltd., No. 14-3103, 2016 WL 6914995, at *6 (D. Minn. May 18, 2016) (same); Garcia v. Patton, No. 14-cv-01568, 2015 WL 13613521, at *4 (D. Colo. July 9, 2015) (same); PacifiCorp v. Northwest Pipeline GP, 879 F.Supp.2d 1171, 1213 (D. Or. 2012) (same); United States v. Sierra Pacific Industries, No. CIV S-09-2445, 2011 WL 2119078, at *2 (E.D. Cal. May 26, 2011) (same), with, e.g., In re Paraquat Products Liability Litigation, No. 3:21-MD-3004, 2022 WL 17688341, at *5 (S.D. Ill.Dec. 15, 2022) (finding communications protected); Advanced Magnesium Alloys Corp. v. Dery, No. 1:20-CV-2247, 2022 WL 16743623, at *8 (S.D. Ind. Nov. 7, 2022) (same); Pipeline Productions, Inc. v. Madison Companies, LLC, No. 15-4890, 2019 WL 3973955, at *7 (D. Kan. Aug. 22, 2019) (same). For their part, Plaintiffs rely on the Dery case.
None of those cases, however, involved a treating physician or healthcare provider like Dr. Goldwasser. That is significant, because the Advisory Committee and the courts, including ones finding no waiver of protected communications with respect to certain non-retained experts, have distinguished treating physicians as non-retained witnesses for whom disclosure of communications between plaintiff's counsel and the witness would be warranted. As explained in Sierra Pacific, in deciding to not extend the same work product and privilege protections to counsel's communications with non-retained experts, the Civil Rules Advisory Committee expressly and specifically singled out treating physicians as an example:
There are reasonable grounds to believe that broad discovery may be appropriate as to some “no-report” experts, such as treating physicians who are readily available to one side but not the other.Sierra Pacific, 2011 WL 2119078, at *7 (quoting Report of the Civil Rules Advisory Committee (May 8, 2009, amended June 15, 2009, pp. 4-5)). The Advisory Committee expressed concern about making sure discovery would be adequate to “show the ways in which the expert's fact testimony may have been influenced.” (Id.)
Similarly, in Fung-Schwartz v. Cerner Corp., No. 17-CV-0233, 2021 WL 863342 (S.D.N.Y. Jan. 27, 2021), the court favorably cited the distinction noted in Sierra Pacific that the Advisory Committee made for hybrid witnesses like treating physicians:
As the Sierra Pacific court stated, “[s]ome of these non-reporting witnesses should not be treated differently than reporting expert witnesses.” 2011 WL 2119078, at *10. However, other non-reporting witnesses, such as “treating physicians and accident investigators, should be treated differently than reporting witnesses with respect to the discoverability of their communications with counsel.” Id. The court reasoned that because treating physicians and accident investigators are “hybrid fact and expert opinion witnesses”
who will testify concerning their “own personal knowledge of facts,” permitting discovery into their communications with counsel could help “prevent, or at any rate expose, attorney-caused bias.” Id.2021 WL 8613342 at *2 n.1. (Fung-Schwartz did not directly address the question at issue here; rather, it resolved whether a particular expert was one for whom a report was or was not required.)
So too in In re Paraquat Product Liability Litigation. There, the defendant designated one of its former employee toxicologists as a non-retained expert to testify about his past understanding of certain toxicology issues nearly 40 years earlier. 2022 WL 17688341 at *5. The court held that the witness's communications with counsel remained protected. Id. In so holding, however, the court distinguished the witness from others such as treating physicians. The court described the witness as “unlike a typical hybrid witness, e.g., a treating physician who will opine on the actual causes of an injury in addition to the facts” - precisely as Dr. Goldwasser has been designated here. Id.
None of the foregoing cases are controlling. Nonetheless, they reflect a consistent recognition that treating physicians typically are hybrid fact-expert witnesses whose communications with counsel are not protected from disclosure - particularly where, as here, in addition to the facts of their treatment of the party, they are opining as to cause. As non-retained experts, treating physicians are not paid to testify as are retained experts. All else being equal, treating physicians wear a cloak of independence and lack of bias as compared to retained experts. Treating physicians also are different from some other types of non-retained witnesses such as party employees who have built-in biases. In the context of a treating physician, the need for determining the extent to which, if any, the party's attorney may have influenced the witness's testimony is more acute.
Plaintiffs' response does not address the implications of Dr. Goldwasser's status as a treating physician. (See Dkt. 142.) Instead, Plaintiffs seize upon the Advisory Committee note that, with respect to communications with non-retained experts, the amended expert disclosure rules “[do] not exclude protection under other doctrines, such as privilege or independent development of the work-product doctrine.” Fed.R.Civ.P. 26(b) advisory committee's note to 2010 amendment. Plaintiffs emphasize that, at least since May 24, 2024, Plaintiffs' counsel represents Dr. Goldwasser in connection with his role in the case. As a result, Plaintiffs argue, communications between their attorney and Dr. Goldwasser are independently protected by virtue of that attorney-client relationship.
The Court is not persuaded. Some cases requiring disclosure of attorney-retained expert communications have involved relationships where the non-retained expert is represented by the same attorney who represents the party. Indeed, in some instances, a party is the designated non-retained expert. For instance, in Oasis, the defendants included two corporate entities as well as an individual who, among other positions, was Chief Scientific Officer (“CSO”) of both companies. Defendants disclosed the defendant CSO as a non-retained expert. The Court required production of communications between the defendant CSO and the attorneys representing him and the companies. 2024 WL 1424930 at *6. Accordingly, the fact that Plaintiffs' counsel also represents Dr. Goldwasser in connection with his testimony in this case is immaterial. (The outcome could well have been different if Dr. Goldwasser were represented by non-party counsel.)
For the foregoing reasons, Defendants' motion to compel is GRANTED. Plaintiffs shall produce the communications of Plaintiffs' counsel with Dr. Goldwasser.
The Clerk of Court is directed to terminate the letter motion at Dkt. 140.
SO ORDERED.
Copies transmitted this date to all counsel of record.