Discovery deadlines exist for a reason. Although there are exceptions to every rule – and often a rule dictating how to handle such exceptions – litigants in federal court are expected to show their evidentiary cards in a timely, orderly fashion that avoids surprise. In the context of expert discovery, this means inter alia that witnesses who have been retained specifically to offer expert opinion testimony must author a written report (i.e., a Rule 26 report) setting out their opinions and the bases for those opinions. Fed. R. Civ. P. 26(a)(2)(B). Opinions that are inadequately disclosed may be excluded at trial. Fed. R. Civ. P. 37(c). In some cases, this can leave a litigant unable to make a prima facie case and survive summary judgment.
One recent example is Adkins v. Marathon Petroleum Company LP, — F. Supp. 3d. —, 2023 WL 3242432 (S.D. Ohio 2023). In Adkins, Plaintiff alleged that his exposure to hydrogen sulfide (H2S) fumes while working as a tankerman on Defendant’s barge caused him permanent pulmonary injuries. He sued his employer, asserting three causes of action based on this theory: (1) a claim under the Jones Act, (2) Unseaworthiness, and (3) Maintenance and Cure. But each of these causes of action required Plaintiff to establish that his exposure to H2S fumes caused his alleged injuries. Both parties agreed that H2S fumes can cause pulmonary injuries at high enough concentrations, but there was a problem in Plaintiff’s case – both he and his coworkers routinely wore badges designed to alert the wearer if H2S levels exceeded a certain threshold (which threshold was undisputedly below the OSHA regulatory limit and NIOSH short-term exposure limit), and there was no documentation that Plaintiff’s badge had ever alarmed. In short, it was not at all obvious that Plaintiff had been exposed to enough H2S to cause his claimed injuries. Defendant moved for summary judgment, arguing Plaintiff was unable to establish general and specific causation.
In opposition, Plaintiff proffered two experts to opine on causation – a pulmonologist, who had been retained as a testifying expert and submitted a Rule 26 report, and one of Plaintiff’s “treating” physicians, who had been consulted after litigation was underway and had offered a brief four-page letter regarding Plaintiff’s condition. The Court excluded both opinions.
The Court started with Plaintiff’s pulmonology expert, whose opinions were both untimely and substantively deficient. Plaintiff tried to rely on the pulmonologist’s opinion that repeated low-level exposure to H2S fumes can cause “airway remodeling” that may cause permanent pulmonary injury. But the pulmonologist had not disclosed that opinion in his original report or in his untimely supplemental report, which he had issued without leave from the Court. He had not even disclosed the opinion at his deposition. Indeed, he had never offered the opinion until the Court’s hearing on Defendant’s motion to exclude his opinions, some eight years after Plaintiff filed his initial complaint and four years after the close of expert discovery. And, although the pulmonologist claimed to ground his new opinion on his prior experiences as a clinical pulmonologist with patients allegedly exposed to H2S, articles by various academics, the OSHA website, and guidelines by the American Thoracic Society, he had cited none of those sources in his original report, save for a single article that actually contradicted the newly offered opinion. The Court noted that “exactly what [the pulmonologist’s] opinion is on the mechanism of causation has been somewhat of a moving target” and that even “the sources on which he relies to support his opinions likewise have constantly evolved. That is not how expert discovery works.” The Court therefore limited the pulmonologist to the opinions and sources disclosed in his original report. And, because the pulmonologist’s original report failed to provide any meaningful hint as to his proposed testimony concerning causation, the Court concluded that his opinion was inadmissible. In short, he could not provide the missing link on general causation.
The Court similarly excluded Plaintiff’s treating physician’s causation opinions. The physician had prepared a four-page letter in which he claimed that Plaintiff’s continued exposure to “chemical fumes” had contributed to his declining pulmonary function and exacerbated his pre-existing asthma. The letter, however, fell well short of satisfying Rule 26(a)(2)(B)’s disclosure requirements pertaining to retained experts. Therefore, the admissibility of the physician’s opinion turned on whether he was a non-retained treating physician or a retained, reporting expert.
As the Court noted, a treating physician generally may provide expert testimony regarding a patient’s illness, the appropriate diagnosis, and the cause of the illness. But, where the treating physician renders an opinion for the plaintiff in anticipation of litigation, causation is beyond the scope of the testimony a treating physician may provide without tendering an expert disclosure report. In Adkins, Plaintiff did not see the physician until months after he initiated litigation, and it was Plaintiff’s counsel who contacted and hired the physician. Indeed, counsel even attended some of Plaintiff’s appointments with the physician. The Court therefore concluded that the physician was a traditional expert and that Plaintiff’s failure to disclose the physician’s opinions in the manner required by Rule 26 required exclusion of his opinions.
Without these excluded expert opinions, Plaintiff had not carried his burden of creating a genuine dispute whether (1) long-term, low-level H2S exposure can cause symptoms like those seen in Plaintiff (general causation), or (2) the H2S exposure alleged caused Plaintiff’s symptoms (specific causation). The Court consequently granted summary judgment for Defendant.
The Court’s strict adherence to Rule 26 is admirable. The fact that excluding an expert’s opinion for lack of proper disclosure can lead to dismissal of an entire action, as was the case in Adkins, should not relieve a party of the obligation to follow the rules. Adkins serves as a reminder that understanding and being mindful of the specifics of Rule 26, and all discovery rules, can make the difference between winning and losing a case.
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