Monday, April 4, 2022

Fair Scope of the Expert Report Rule Does Not Apply to Treating Doctors

In the case of Merrifield v. Bonacuse, No. 16-CV-3420 (C.P. Lacka. Co. Dec. 8, 2021 Nealon, J.), the court addressed the scope of expert testimony for trial as being beyond the fair scope of the pre-trial reports offered by the expert.

After referring to Pa. R.C.P. 4003.5(c), which limits the direct testimony of any expert to the “fair scope” of the pre-trial reports authored by the experts, the court limited the defense IME doctor from referencing the Plaintiff’s medical billings or Medicare’s lien given that the expert did not identify in his report that he had reviewed any such records and where that expert did not make any reference to the reasonableness of the medical providers’ charges for the amounts actually paid by Medicare.

The court found that, in light of the discrepancy between the defense expert’s pre-trial reports and his proffered testimony, the Plaintiff is found to be unable to prepare a meaningful cross-examination to challenge any opinions with regards to the reasonableness of the medical expenses or Medicare’s Conditional Payments. As such, the Plaintiff’s Motion In Limine was granted.

Relative to the defense objections to the Plaintiff’s treating doctor’s testimony as being beyond the fair scope of any reports, Judge Nealon found that the “fair scope” of the report limitation set forth in Rule 4003.5(c) only applies to expert witnesses whose opinions were acquired or developed in anticipation of litigation or for trial.

Given that the Plaintiff’s expert formulated his opinions in his capacity of a treating doctor, rather than as an expert hired by a party in anticipation of litigation or trial, the court found that that expert was not obligated to author a pre-trial report and that his trial testimony was not subject to the “fair scope” rule. As such, the Defendant’s Motion In Limine seeking to strike the Plaintiff’s expert’s direct testimony was denied.

Anyone wishing to review a copy of this decision may click this LINK.

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