When a drug or device case goes to trial, who is the most important witness? Let’s straightaway eliminate the plaintiff as a possible answer to that question. Based on what we’ve heard from jurors (both real and mock), when plaintiffs prevail it is often despite themselves. So then who? A credible company witness can turn things around and defuse jury anger over company conduct. Or that witness can make things much worse by squirming or fencing. Or the plaintiff lawyers could overplay their hand by overplaying videotaped testimony, thereby boring the jurors into catatonia. What about experts? Most jurors will tell you they discounted the experts from both sides, viewing paid-for testimony with measured skepticism.

For our money, the most important witness is often the plaintiff’s prescribing or treating physician. People trust doctors. It is easy to see a particular plaintiff’s doctors as practicing medicine, not litigation. They talk about what they actually did to treat a patient. It seems that they truthfully recount reality, not merely mouth a script authorized by the lawyers. Perhaps it is a vast oversimplification, but when we assess cases as being favorable or unfavorable, as being a good or bad case for bellwether trial selection, or when we assess settlement valuation, whether the plaintiff’s doctors offer a thumbs up or thumbs down on the product ranks near the top of the criteria.

Sometimes figuring out what the plaintiff treaters will say amounts to a game of chicken. We can read the medical records. That part is easy. We can depose the doctors on the obvious medical questions about what happened. But it becomes a bit terrifying when it comes to asking doctors the bottom line questions of whether the product in question actually caused the injury, or whether the doctors would still use the product knowing what they know now. It’s nice to get helpful testimony, but one is always wary about eliciting testimony that kills one’s case. If things go kablooey, it is time for the dunce cap and time for a difficult conversation with the client. So you nibble a bit with your questions here and there, and pounce only if things look really promising.

And then what? Is the doctor’s opinion – for that is where we are now – admissible? Can we label it as an expert opinion? Do we need to disclose the doctor as an expert? If so, what does the disclosure need to say? This process can also amount to a game of chicken. How much or how little of a preview is required? Playing this game wrong can have severe consequences.

That was certainly the case in Webb v. Zimmer, Inc., 2018 WL 836366 (E.D.N.Y. Feb. 12, 2018). It is a knee replacement product liability case. What do we learn from the Webb case? To begin with, it doesn’t pay to be less than forthcoming with opposing counsel about your expert witnesses. The plaintiff side did not inform the defense that a treater would also testify as an expert on a key issue, and then tried to bring the witness in as an expert at the last minute, after a summary judgment motion was filed. That is a classic backfilling operation. The Webb court provides a solid discussion of what treaters can and can’t testify to when no expert report is provided. Ultimately, the plaintiff was allowed to get away with belated testimony about the doctor’s own response to different warnings, but only at the price of having to pay for having a second deposition of the doctor. Other non-treatment opinions were excluded. The Webb case offers a decent list of do’s and don’ts.

Let’s flesh out the particulars.

The physician/maybe-expert was Dr. Unis, who performed a right total knee replacement on the plaintiff using the defendant’s knee flex system. At the time, Dr. Unis was using this product for all of his primary knee replacements, regardless of the specifics of his patients’ conditions. That was because Dr. Unis felt “comfortable with the nuances of the system which [he believes] contributes to the success of putting in an implant.” Ten days after the initial knee surgery on the plaintiff, Dr. Unis remarked that the plaintiff “really looked great.” But that greatness did not last. Dr. Unis later performed three revision surgeries on the plaintiff’s knee. The plaintiff was displeased and filed a lawsuit alleging the usual array of product liability claims. After discovery and the usual pretrial skirmishes, the plaintiff abandoned her design defect theory and confined her claims to those based on a failure to warn theory. What was the relevant warning? It actually seems pretty complete. It informed the surgeon that soft tissues should be balanced and components positioning confirmed to minimize edge loading. Under “Patient Counseling Information,” the insert stated that because prosthetic joints are not as strong, some might need to be replaced at some point.

The defendants filed a motion for summary judgment. In her opposition papers, the plaintiff included an affidavit from Dr. Unis that, among other things, addressed the failure to warn theory, including what Dr. Unis would have done if the warning had been improved. The defendants then sought to exclude the Unis affidavit on the grounds that the plaintiff did not disclose Dr. Unis as an expert witness on the failure to warn elements, and because the plaintiff did not provide the required disclosures under Rule 26(a).

Now let’s turn to a bit of history. Prior to 2010, when Rule 26(a)(2)(C) was added, as a general rule, parties did not need formally to designate treating physicians as experts or serve expert reports summarizing their opinions in order to bring those treaters in to testify. Rather, the treating physician was considered a special species of fact witness and could offer medical opinions only if such opinions were formed during the course and scope of treatment of the plaintiff. Information or opinion that was acquired by the treating physician from an outside source was out of bounds. Things changed significantly after the adoption of Rule 26(a)(2)(C) in 2010, though not many lawyers seem to know it. Under the new rule, a treating physician may offer factual testimony as well as opinion testimony regarding his patient’s diagnosis, treatment, prognosis, or causation as long as the proper disclosure is served on the other side. Rule 26(a)(2)(C) requires a statement regarding “(i) the subject matter on which the witness is expected to present evidence under 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). This requirement is much more extensive than formerly had been required for treaters, though still less extensive than expert reports and disclosures required under Rule 26(a)(2)(B) for retained experts. Without the required disclosure under either Rule 26(a)(2)(B) or Rule 26(a)(2)(C), a treating physician may testify only as a fact witness regarding patient treatment.

In the Webb case, the plaintiff tendered an expert disclosure for Dr. Unis as an expert witness, but provided no summary of his expert opinions, as required by Rule 26(a)(2)(C). Instead, that disclosure revealed that Dr. Unis’s testimony would be confined to his care and treatment of the plaintiff, as well as “causation” and “any other questions that relate to the issue of plaintiff’s damages.” Not a word was whispered about the effect of the warnings. Following the initial disclosures, the plaintiff withdrew her initial expert reports for revision, based on her revised theory of the case. Remember, that revised theory centered on failure to warn. The defense counsel asked about the scope of Dr. Unis’s expert opinions, and made clear that the defense assumed that Dr. Unis would not offer opinions related to the adequacy of the product warnings or that a failure-to-warn caused the injuries. The plaintiff’s counsel responded that “I am not sure we disagree,” and that Dr. Unis’s opinions would “not be as an expert but as a fact witness to what he observed and concluded about the product and the plaintiff’s physical condition based on his personal experiences in this case.” Again, there was no hint about warnings.

The Webb court held that this expert disclosure provided no indication that Dr. Unis intended to testify as to the plaintiff’s failure to warn theory, or that he would utilize outside information to form his expert opinions. That conclusion seems utterly inescapable. By contrast, the Unis affidavit submitted by the plaintiff in opposition to the summary judgment motion contained Dr. Unis’s “thoughts regarding the adequacy of Zimmer’s warnings or what he would have done differently had he known about any alleged improper warning or contraindication.” Significantly, the Webb court concluded that “these statements constitute an expert opinion. These paragraphs do not contain treatment explanations or opinions as to the Plaintiff’s diagnoses; these are statements of hypothetical thoughts or actions that involve outside information.” Wow. We have always thought that it was pure speculation for a physician to offer post hoc testimony about what he or she would have done had the warnings said what the plaintiff’s lawyer – with 20/20 litigation and medical hindsight – now says the warning should have said. But Webb now gives defense lawyers an additional ground to repel such testimony: it is expert testimony that implicates the disclosure requirements of Rule 26(a)(2)(C). Check your file. We bet that the plaintiff lawyer did not supply the requisite disclosure.

Unfortunately, the Webb court did not flat-out preclude the belated “expert” testimony about warning causation. The court held that the plaintiff’s failure to comply with Rule 26(a)(2)(C) did not automatically preclude the affidavit under Rule 37(c). A district court has wide discretion to impose sanctions, including severe sanctions, under Rule 37. The typical sanctions analysis militated in favor of some sort of sanctions in the Webb case for the plaintiff’s expert shell-game, because the plaintiff offered “no persuasive explanation for not appropriately disclosing Dr. Unis’s expert testimony, which is beyond what is properly given by a treating physician.” Moreover, the defendants would be prejudiced if the court were to allow portions of the Unis Affidavit to be admitted — without allowing the defendants to conduct additional discovery. Thus, the court decided to reopen discovery only to allow the defendants to re-depose Dr. Unis on the failure to warn theory and his affidavit. The Webb court further ordered plaintiff’s counsel pay the defendants’ reasonable attorney’s fees associated with the renewed deposition of Dr. Unis, as well as reasonable attorney’s fees that the defendants’ incurred in bringing the motion to strike. Literally, the plaintiff lawyers paid the price for failing to disclose the true scope of the treating doctor’s opinion. Time will tell whether that price was high enough.