Allen v. New York State Department of Corrections and Community Supervision

Background

The plaintiffs moved to preclude, or block, expert testimony from six defendant doctors: Regional Medical Directors Dinello, Bozer, Mueller, and Hammer, and Chief Medical Officers Koenigsmann and Morley. The doctors proposed to testify about their credentials, their knowledge of the process for reviewing and approving medication requests under the MWAP Policy, whether that policy was “reasonable and necessary,” and their medical opinions about approving or rejecting requests for certain patients.

Rule 26 disclosures

Federal Rule of Civil Procedure 26(a)(2)(C) requires a party offering certain non-retained expert testimony to provide a summary of the facts and opinions that the witness is expected to present. The court concluded that the doctors’ opinions about the general reasonableness and necessity of the MWAP Policy went beyond their roles as treating or consulting physicians. The defendants’ disclosures stated generally that the doctors relied on file materials, authorities and texts, and their education and experience, but did not identify the facts supporting their policy opinions with enough detail to give the plaintiffs fair notice.

The court also found inadequate the defendants’ disclosures concerning independent research that some Regional Medical Directors performed when deciding whether to approve medication requests. The defendants were required to disclose the facts relevant to that research. The court noted that the disclosures concerning the doctors’ opinions about individual medication requests were, for the most part, more detailed.

Whether to exclude the testimony

Under Federal Rule of Civil Procedure 37(c)(1), a party that fails to make required disclosures generally may not use the undisclosed information or witness unless the failure was substantially justified or harmless. The court considered the explanation for the failure, the importance of the testimony, the prejudice to the opposing party, and whether a continuance could address that prejudice.

The court found no reasonable explanation for the inadequate disclosures and recognized that the plaintiffs would be prejudiced by the lack of notice. But it also found that the testimony about the MWAP Policy appeared important, that the case was still relatively young, that no class-certification motion had yet been filed, that no certification hearing had been scheduled, and that no trial date had been set. The court concluded that the prejudice could largely be addressed by supplemental disclosures and depositions. It also stated that the plaintiffs could later challenge the doctors’ qualifications to give expert testimony; the court did not decide that issue in this order.

Disposition

The court denied the plaintiffs’ motion to preclude the doctors’ expert testimony without prejudice to renewal. It gave the defendants one last opportunity—after an earlier ruling involving Dr. Bozer, a second opportunity for the other doctors, and a third for Dr. Bozer—to provide adequate Rule 26(a)(2)(C) disclosures. If the defendants wished to use that opportunity, they had to inform the plaintiffs promptly and provide the disclosures within 30 days of the order. The clerk was directed to close the open motion.