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KEY PROPOSED RULE CHANGES & THEIR IMPACT: Retained Experts, by Taylor Fouser

Please welcome Taylor Fouser, an Attorney at Gjording Fouser as a Guest Blogger!

Recently, the Idaho Supreme Court Civil Justice Reform Task Force, which is made up of a cross-section of judges and attorneys, recommended the Supreme Court adopt significant changes to the current Idaho Rules of Civil Procedure. As stated in the Task Force’s Final Report, “The suggested changes to the civil rules are intended to provide more timely and cost-effective justice in approximately 70 percent of the general cases filed in Idaho courts,” which includes medical malpractice. While the proposed rules have yet to be adopted by the Supreme Court, leaving in flux whether and when the rules will come into effect, it is believed the Task Force has the full support of the Idaho Supreme Court. This post, which is based on our analysis of the Task Force’s Final Report and a rules presentation from the Hon. Steven Hippler, summarizes how specific proposed rule changes to retained expert provisions will impact medical malpractice defense so we are prepared if/when the proposed rules become live.

Medical malpractice litigation is often referred to as a “battle of the experts.” Indeed, under Idaho’s Medical Malpractice Act, probably the most crucial aspect of a medical malpractice case is the expert disclosure and parties spend a significant amount of time and money on expert discovery. With its newly proposed retained expert rules, the Task Force hopes to “control the costs related to expert discovery.”

The proposed amendments to Idaho Rule of Civil Procedure 26(a)(2) will require litigants, without the need for a discovery request, to disclose:

i. Witnesses’ name and business address

ii. Brief statement of qualifications

iii. A brief summary of opinions

iv. A list of materials reviewed

Following this basic disclosure, the opposing party must then elect between a detailed written report signed by the expert or a deposition of the expert, but not both. If a deposition is chosen, which the Task Force considers to be the more expansive form of discovery, the party taking the deposition must pay the expert for the time in the deposition, and the deposition must not exceed 7 hours. A written report is the default if a timely election is not made; however, in multi-party litigation, if all the defendants cannot agree, then the proposed rules dictate that further discovery of the expert “may be obtained only by deposition.” The multi-party amendment could be the cause of dispute in the context of a medical malpractice action. For instance, does the hospital, who could be held vicariously liable, get a say in choosing expert discovery of an independent contractor physician? Can a co-defendant physician from a different specialty force a deposition? The rules are silent on these potential issues so it will have to be developed through case law, but at the very least, we trust that we will be able to decide expert discovery for an opposing expert who renders a standard of care opinion purely against our client. But certainly, there are gray areas.

Moreover, even though the Task Force considers a deposition the more broadly-based form of expert discovery, it also presents greater risk of facing an undisclosed opinion at trial. The proposed amendment provides that an expert may not testify “concerning any opinion or matter not fairly disclosed in the written disclosure or in deposition, if elected, unless during the deposition the deponent identified the opinion but the party taking the deposition failed to reasonably inquire further about the opinion and basis for it.” Such an exception is ripe for disagreement, and a crafty plaintiffs’ attorney (and expert) could drop a pearl during a deposition that later comes back to impact a trial significantly. Certainly, the proposed rule substantially changes for how a defense attorney prepares for expert depositions.

Obviously, a defense attorney should evaluate expert discovery on a case-by-case, expert-by-expert basis, but be wary of selecting a deposition until the courts provide more guidance. The safest and most reliable selection is to keep an expert within the four corners of his or her expert report.

The proposed rules are still in their infancy stage, and public comment on the rules closed on June 30, 2019. To this end, we can expect some changes and tweaks to the Task Force’s current recommendations. There can be no doubt, however, that there has been a significant push from people in high places to overhaul the current rules. Idaho can expect changes coming down the pike, and medical malpractice defense firms need to be ready.

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