“The facts and data considered by the witness . . . .” That is what expert witnesses must disclose to the other side after forming their opinions, although the rule was not always this way. Before 2010, you had to disclose “the data or other information” considered by an expert. But for many that was too broad, potentially encompassing attorney thoughts or impressions. So the committee changed the rule, and we now have the “facts and data” standard. As the committee explained, “The refocus on ‘facts or data’ is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel.” Rule 26(a)(2)(B)(ii) advisory committee note to 2010 amendment. We wrote on the 2010 changes to Rule 26 here.
Your work product is therefore somewhat safer from disclosure than it once was, but if an expert considered “facts and data,” those facts and data must be disclosed. That is the lesson of In re Benicar (Olmesartan) Products Liability Litigation, No. 15-2606, 2017 WL 970263 (D.N.J. Mar. 13, 2017), where an MDL judge ordered the plaintiffs to produce medical records upon which their experts had relied.
The records at issue appear to have involved patients other than the plaintiffs, which we guess is why the production of medical records was the least bit controversial. As it turned out, those other patients’ records became discoverable when two experts considered them in forming their opinions. One, for example, reviewed the charts of certain patients and relied on them in reaching his ultimate conclusions. Id. at *3. The other similarly confirmed that his review of a number of patient charts “contributed to his thinking.” Id.
In finding that the experts had “considered” the records, the district court adopted a broad view of “considered”—broader than it really had to find on these facts. The district court ruled that Rule 26(a)(2)(B) requires disclosure of “all information a testifying expert ‘generates, reviews, reflects upon, reads, and/or uses in connection with the formulation of his opinions, even if such information is ultimately rejected.’” Id. at *2 (quoting Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460, 464 (E.D. Pa. 2005)). These two experts had selected and considered other patients’ charts when forming their opinions, which placed those materials well within this formulation of “considered.”
The plaintiffs had little to say in opposing production of the records. First, they argued that the experts did “not own or control the records.” But they submitted no evidence to support that position, and because the experts had easily been able to access the records to review them, they likely had “possession, custody, of control” over them. Id. at *3.
Second, the plaintiffs argued that it would be burdensome to identify, collect, redact, and produce the records. Oh, the irony—MDL plaintiffs’ lawyers arguing that document production is burdensome. Regardless, the plaintiffs did not provide any evidence to support this point either, and the experts had testified that they considered a “discrete, identifiable, and manageable number of records.” Id. at *3. The court rejected a related objection on proportionality, ruling that “[g]iven the importance plaintiffs place upon their experts’ opinions and clinical experience, plaintiffs’ proportionality objection is rejected.” Id. We like proportionality, and we wholeheartedly endorse the idea that discovery should be proportionate to the dispute. Here, the plaintiffs were simply trying to have their cake and eat it too.
Third, the plaintiffs argued that if they had to produce patient records, then the most qualified experts who treat and study patients would never agree to be experts because of the “expense and disruption” it would cause. But again the plaintiffs submitted no supporting evidence, and the court rejected the argument as hyperbole. Id. at *4. When all was said and done, rules are rules: “[P]laintiffs’ concerns do not trump the Federal Rules . . . . [which] require testifying experts to produce al facts and data they consider in reaching their opinions. There is no exception for paid trial experts who happen to be treating physicians.” Id.
If these experts had said only that they were relying generally on their “experience,” we do not know how this dispute would have come out. That was not this case. This court held that medical records are “facts and data” and that relying on certain records in forming opinions constitutes “considering” them. The records were discoverable, all things considered.