Fung-Schwartz v. Cerner Corporation
- Barbara Moses
- 1:17-cv-00233
- U.S. District Court · Southern District of New York
- 9
In Fung-Schwartz v. Cerner Corporation, Judge Moses denied plaintiffs’ request for counsel communications with expert Lisa Gallagher, subject to Rule 26’s required disclosures.
The ruling affects the plaintiffs, Jennifer Fung-Schwartz, DPM, and Jennifer Fung-Schwartz, DPM, LLC, and the Cerner defendants. It limits discovery of communications between Cerner’s counsel and expert Lisa Gallagher, while requiring production of communications in the three categories identified by Rule 26(b)(4)(C).
What happened
In Fung-Schwartz v. Cerner Corporation, the plaintiffs asked the court to require Cerner to produce communications between its lawyers and Lisa Gallagher, an expert witness addressing Cerner Solutions’ counterclaim damages. They also had asked to postpone Gallagher’s deposition while the request was decided.
The court held that Gallagher’s communications with Cerner’s counsel were generally protected because she provided a formal expert report under Rule 26. The plaintiffs had previously argued that she should provide such a report, and the court rejected their later attempt to obtain all communications by relying on her description as a “non-retained” expert.
Judge Moses denied the motion to compel, except for communications about Gallagher’s compensation, facts or data provided by counsel that she considered, or assumptions provided by counsel that she relied on. The court ordered any such communications produced by February 3, 2021, and set related deadlines for Gallagher’s deposition and certain interrogatory responses.
The detailed version
- Fung-Schwartz v. Cerner Corporation · No. 1:17-cv-00233
- Barbara Moses
- Jan. 27, 2021
Background
The plaintiffs are Jennifer Fung-Schwartz, DPM, and her wholly owned practice, Jennifer Fung-Schwartz, DPM, LLC. The defendants are Cerner Healthcare Solutions, Inc., and its affiliate Cerner Corporation. The case includes claims arising from electronic medical-record and billing services contracts, as well as Cerner Solutions’ counterclaim for unpaid electronic-medical-record services.
Cerner Solutions disclosed Lisa Gallagher, a Cerner Corporation employee, as an expert who would testify about the counterclaim damages. The disclosure stated that Gallagher had reviewed invoices, contracts, and sales orders and would calculate amounts allegedly owed. Although initially described as a non-retained expert under Federal Rule of Civil Procedure 26(a)(2)(C), Gallagher later provided a formal report under Rule 26(a)(2)(B). The report calculated principal, late fees, and interest that Cerner Solutions claimed Dr. Fung-Schwartz owed as of October 15, 2020.
Discovery Request
The plaintiffs sought communications between Gallagher and Cerner’s counsel concerning her expert disclosure. They argued that because Gallagher was a non-retained expert, the communications were not protected by Rule 26(b)(4)(C). Cerner argued that Gallagher was a reporting expert because she had provided a report under Rule 26(a)(2)(B), and that the communications were protected attorney work product.
Analysis
Rule 26(b)(4)(C) generally protects communications between a party’s attorney and a witness required to provide a report under Rule 26(a)(2)(B). The court concluded that the relevant distinction was whether Gallagher was a reporting or non-reporting expert, rather than whether she was retained or non-retained. The court found that the plaintiffs had successfully insisted earlier that Gallagher provide a formal report and could not later reverse position to obtain both the report and broad disclosure of counsel communications.
The court also stated that Gallagher’s role was primarily to calculate unpaid invoices, contractual late fees, and interest, and that the record showed limited personal knowledge acquired after litigation began. The court noted that the report’s attached spreadsheets appeared to detail the calculations, while allowing the plaintiffs to seek further clarification at Gallagher’s deposition.
Disposition
Judge Moses denied the plaintiffs’ motion to compel production of Gallagher’s communications with defendants’ counsel, except to the extent the communications related to: (1) compensation for Gallagher’s study or testimony; (2) facts or data provided by counsel that Gallagher considered in forming her opinions; or (3) assumptions provided by counsel that Gallagher relied on in forming her opinions. The court ordered communications within those categories produced by February 3, 2021. If the plaintiffs still wished to depose Gallagher, the deposition was to occur by February 10, 2021. The court also set February 18, 2021, as the deadline for certain related contention-interrogatory answers or updates.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.