Powers v. Memorial Sloan Kettering Cancer Center
- Lorna Schofield
- 1:20-cv-02625
- U.S. District Court · Southern District of New York
- 19
In Powers v. Memorial Sloan Kettering Cancer Center, Judge Schofield denied as moot reconsideration of expert-disclosure rules and required Defendants to make specified disclosures.
The ruling affected Scott Powers and the Defendants by clarifying that Defendants must provide full expert disclosures when relying on treating-physician testimony beyond the physician’s factual observations during treatment.
What happened
In Powers v. Memorial Sloan Kettering Cancer Center, Scott Powers asked the court to apply equally to Defendants a requirement that he had been given for disclosing expert testimony from treating physicians.
Powers argued that Defendants should not be allowed to rely on Dr. Skye Mayo’s opinions without the same full expert report that Defendants had demanded from him. The dispute concerned testimony beyond what a treating physician personally observed while treating Erika Zak.
Judge Lorna G. Schofield treated the motion as moot and clarified that Defendants must provide the required disclosures if they intend to rely on a treating physician for testimony beyond fact-witness observations. The Clerk was directed to close the motion.
The detailed version
- Powers v. Memorial Sloan Kettering Cancer Center · No. 1:20-cv-02625
- Lorna Schofield
- Oct. 26, 2020
Background
Scott Powers sued Constantinos Sofocleous and Memorial Sloan Kettering Cancer Center individually, as representative of Erika Zak’s estate, and as the natural guardian of L.P., a minor. The opinion concerns a discovery dispute about expert disclosures for treating physicians.
In an earlier discovery order, the Court required Powers to provide a full disclosure under Federal Rule of Civil Procedure 26(a)(2)(B), including a signed expert report, if he intended to rely at trial on one of Ms. Zak’s treating physicians for testimony beyond what that physician observed as a fact witness during treatment. Powers moved for reconsideration, asking the Court to apply the same requirement to Defendants.
The motion focused on Dr. Skye Mayo, a treating physician who was deposed on October 8, 2020. Powers had served a disclosure under Rule 26(a)(2)(C), the provision for witnesses who do not provide written reports. Defendants later disclosed that they intended to rely on Dr. Mayo’s deposition testimony as expert opinion testimony at trial, including testimony about tumor boards, informed consent, complications, Ms. Zak’s liver damage and outcome, and her cancer and response to treatment. Defendants’ disclosure did not include a signed report from Dr. Mayo.
Ruling
The Court treated Powers’s motion for reconsideration as moot. The Court clarified that its earlier order should not be construed to mean that Defendants had no obligation to serve expert disclosures under Rule 26(a)(2)(B). If Defendants intend to rely at trial on a treating physician for testimony beyond what that physician observed as a fact witness during Ms. Zak’s treatment, Defendants must serve disclosures under Rule 26(a)(2)(B).
The Court directed Defendants to follow the deadlines in the Court’s prior order: October 30, 2020, for ordinary expert disclosures, and November 30, 2020, for rebuttal experts. The Clerk was directed to close the motion at Docket Number 91.
Effect
The ruling addressed only the parties’ expert-disclosure obligations and did not decide the underlying claims. It required the same type of full disclosure from Defendants when they seek to use treating-physician testimony beyond firsthand treatment observations, while resolving Powers’s reconsideration request as moot.
Read the full 19-page opinion on CourtListener, the free public archive maintained by the Free Law Project.