CONFIDENTIAL MEMORANDUM

TO: THE HONORABLE JACK W. SMITH

FROM: MATTHEW L. PEABODY, LAW CLERK
SUBJECT: EXPERT WITNESS QUALIFICATIONS AND MOTION TO
COMPEL
OPPOSED: YES NO
DATE: 9/2/2010
CASE: JACOB MARKUS V. INFINITY MEDICAL CENTER

I. Attorneys and Parties

- Jeff W. Jaxson, for Plaintiff Jacob Markus, individually and as personal
representative of the estate of Kerry Markus and parent of
o Katlyn Markus, a minor
o Justine Markus
o Perri Markus
- Susan L. Keyson, for Defendants Infinity Medical Center and Dr. Gerry
Stein

II. Summary of Facts

This medical malpractice case stems from Plaintiff Kerry Markus’
(“Plaintiff”) visit to Infinity Medical Center on March 19, 2005. Dr. Stein
(“Defendant”) treated Plaintiff for “complaints of back pain radiating down
her right leg, nausea, and vomiting.”1 The lab work was reported as
“abnormal,” and Plaintiff claims that Defendant did not order the necessary
tests to clarify the results. Defendant gave Plaintiff a Vicodin prescription
and asked her to follow up with her primary care physician. Plaintiff alleges
she told Defendant she did not have a doctor at present. Plaintiff further
alleges that Defendant did not admit her to the hospital even though the
diagnosis was inconsistent with the lab results.
Plaintiff returned to the hospital by ambulance on March 22, 2005,
exhibiting “worsening pain, an altered mental state, and acute renal
failure.”2 Examination showed her to have: “[s]everal abscesses in her brain;
[a]cute renal failure with kidney abscesses; [a]cute liver failure with
abscesses; [l]esions on her legs and feet; [m]ental status changes; [a]cute
respiratory changes; [a]cute respiratory failure; [a]cute bacterial endocarditis
with staph sepsis associated with septic shock and severe acidosis.”3

1
Complaint, at 11.
2
Id., at 4.
3
Id.

1
Plaintiff became comatose on March 22, 2005 and passed away on March 23,
2005 “due to acute bacterial endocarditis with staph sepsis.”4

Cause of Action and Relief Sought

Plaintiff alleges negligence on the part of Dr. Stein, negligence per se
on the part of Infinity (violating 7 AAC 12.105 and .870), vicarious liability on
the part of Infinity (per AS §09.65.096), loss of chance of recovery, and
negligent infliction of emotional distress.
Plaintiff claims wrongful death damages pursuant to AS §09.55.580,
pain and suffering and pre-death emotional distress, economic losses to
Plaintiff’s estate, and emotional distress and loss of consortium to the
remaining Plaintiffs.

III. Procedural Status

Filing Date
Plaintiff filed this action on February 24, 2007. Since that time there
have been several motions submitted by both parties which this Court has
considered and ruled on.

Current Motions
The current dispute places two separate motions before the Court.
Plaintiff filed a motion to compel all documents and/or recordings generated
as a result of communications between defense counsel and expert Dr.
Dooley on October 10, 2008. Defendant filed a motion in limine to preclude
standard of care testimony from expert Dr. Spears on December 12, 2008.

IV. Case Law, Rules, Statutes

A. Expert Witness Qualification

The parties have asked the Court to determine if, under Alaska Statute
§09.20.185, a medical expert who is not an emergency room specialist would
be qualified to testify concerning: 1) the standard of care for emergency
room doctors and 2) other related medical issues. The answer is “more than
likely” with regards to the first issue and “almost certainly” with regards to
the second. Because this is a matter of first impression in Alaska it is
appropriate for this Court to look to other jurisdictions for guidance.
While AS §09.20.185 has not been reviewed for this particular issue by
Alaska courts, the issue has been discussed by other courts interpreting
similarly worded statutes. For example, in Marshall v. Medical Associates of
Rhode Island, Inc., the Rhode Island Supreme Court examined statute §9-19-
41, which provided that “to be qualified as an expert and thus be entitled to
give expert testimony, one should have knowledge, skill, experience, training
or education * * * in the field of the alleged malpractice.” Marshall v.
Medical Associates of Rhode Island, Inc., 677 A.2d 425, 426 (R.I. 1996) (citing
Gen. Laws §9-19-41). In reviewing the trial judge’s decision that the expert
4
Id.

2
witness either had to be board certified or have some other training in the
same emergency specialty as the defendant-physician, the Marshall court
stated, “[t]here is nothing in the statute that suggests that to qualify as an
expert witness, the testifying doctor must be board certified or otherwise
have training or experience in the same medical specialty as the defendant-
physician, provided the proposed expert otherwise has knowledge, skill,
experience, or education in the same field as the alleged malpractice.” Id.
The court concluded that the witness’s lack of training in the emergency
room would not be fatal to qualifying under the statute. “Among other
qualifications, this proposed medical expert had routinely treated animal-bite
wounds in his practice, had lectured on that topic at several prestigious
medical schools, and had encountered “hundreds” of these wounds during
his many years as a physician. On this record, we believe that the witness
satisfied the criteria set forth in §9-19-41 for qualifying as an expert in the
field of the alleged malpractice and therefore should have been permitted to
give expert testimony at the trial.” Id., at 427.
Similarly, in Sami v. Varn, the Supreme Court of Virginia considered
whether the trial court erred in holding that an obstetrician-gynecologist was
not qualified to give expert testimony on the standard of care for a pelvic
examination performed by an emergency room physician. Sami v. Varn, 535
S.E.2d 172 (Va. 2000). In Virginia, the qualification of a witness as an expert
is governed by Code §8.01-581.20, which states in part, “[a] witness shall be
qualified to testify as an expert on the standard of care if he demonstrates
expert knowledge of the standards of the defendant’s specialty and of what
conduct conforms or fails to conform to those standards and if he has had
active clinical practice in either the defendant’s specialty or a related field of
medicine.” Sami, 535 S.E.2d at 174. The trial court had held that the expert
witness was not qualified to testify to the standard of care applicable to the
emergency room physicians because he did not “demonstrate[ ] expert
knowledge of the standards of defendant[s’] specialty,” and he did not “have
an active clinical practice in ER” or a related field. Id. The Supreme Court
reversed the trial court stating, “we will reverse a holding that a witness is
not qualified to testify as an expert when it appears clearly from the record
that the witness possesses sufficient knowledge, skill, or experience to make
him competent to testify as an expert on the subject matter at issue.” Id.
In regards to the first part of the lower court’s rational, the court in
Sami found that the witness had testified he was familiar with the standards
of care applicable to pelvic examinations and that these standards were the
same for an emergency room physician and an OBGYN. The court held that
the witness’s “lack of knowledge regarding certain procedures of emergency
medicine might disqualify him from rendering expert testimony as to these
procedures, but that lack of knowledge does not preclude him from giving
expert testimony on procedures which are common to both emergency
medicine and the field of obstetrics-gynecology and are performed according
to the same standard of care.” Id. In regards to the second part, the court
held that obstetrics-gynecology and emergency medicine should be

3
considered related fields of medicine for the purposes of §8.01-581.20 in the
instant case because the procedure at issue is performed in both specialties
and the standard for performance is identical. The court concluded, “[t]he
purpose of the requirement in §8.01-581.20 that an expert have an active
practice in the defendant’s specialty or a related field of medicine is to
prevent testimony by an individual who has not recently engaged in the
actual performance of the procedures at issue in a case. Therefore, we
conclude that, in applying the “related field of medicine” test for the
purposes of §8.01-581.20, it is sufficient if in the expert witness’ clinical
practice the expert performs the procedure at issue and the standard of care
for performing in the procedure is the same.” Id., at 175.
In Haisenleder, a case from the Michigan Court of Appeals, the lower
court disqualified an expert because they felt “that the doctor was extremely
competent in his area but did not have the requisite knowledge to establish a
standard that existed in emergency rooms.” Haisenleder v. Reeder, 318
N.W.2d 634, 637 (Mich. 1982). The applicable rule stated a witness may be
qualified as an expert “by knowledge, skill, experience, training, or
education.” Id. The Court of Appeals found that “[a] member of one medical
school of thought may testify as to the standard of care applicable to
members of another school of thought if the witness is familiar with the
applicable standards of care.” Id. The court went on to state, “[m]erely
because [the witness] was a specialist and not a “troop in the trench” does
not render him unqualified as long as he knows the applicable standard of
care.” Id.
Similarly, in Campbell v. Hospital Service Dist. No. 1, the court stated,
“[i]t is well established that where medical disciplines overlap, a specialist in
one field may give expert testimony as to the standard of care applicable to
areas of the practice of medicine common to both disciplines.” Campbell v.
Hospital Service Dist. No. 1, Caldwell Parish, 768 So.2d 803, 811 (La. 2000).
The court found that, although the plaintiffs did not offer deposition
testimony from an expert in emergency medicine, the expert witnesses (both
cardiologists) that were offered by plaintiff were more than qualified to
establish the appropriate standard of care because “the record clearly shows
that the diagnosis and treatment of angina leading to a MI is not peculiar to
the practice of emergency room medicine.” Id. See also Hagedorn v.
Tisdale, 73 S.W.3d 341, 349-50 (“Every licensed doctor is not automatically
qualified to testify as an expert on every medical question. On the other
hand, the fact that an expert is not a specialist in the particular branch of the
profession for which the testimony is offered will not automatically disqualify
him as an expert. In determining whether the expert is qualified on the basis
of training or experience, the court is to consider whether, at the time the
claim arose or the testimony is given, the witness is board certified or has
other substantial training or experience in an area of practice relevant to the
claim and is actively practicing medicine in rendering medical care services
relevant to the claim.” (citation omitted)).

4
 In the 9th Circuit, courts in California have consistently held that an
expert must have substantial experience providing emergency medical
coverage in order to testify regarding other emergency providers. However,
these decisions were based on California Statute §1799.110. This statute
provides in part,

(c) In any action for damages involving a claim of

negligence against a physician and surgeon providing
emergency medical coverage for a general acute care hospital
emergency department, the court shall admit expert medical
testimony only from physicians and surgeons who have had
substantial professional experience within the last five years
while assigned to provide emergency medical coverage in a
general acute care hospital emergency department. For
purposes of this section, “substantial professional experience”
shall be determined by the custom and practice of the manner
in which emergency medical coverage is provided in general
acute care hospital emergency departments in the same or
similar localities where the alleged negligence occurred.

West's Ann.Cal.Health & Safety Code § 1799.110. Thus, the section requires
that an expert testifying in a malpractice action as to the standard of care
must be one who has “substantial professional experience” in providing
emergency medical services in an emergency room. The intent of this
statute was “to promote the provision of emergency medical care by giving
dedicated emergency room physicians a measure of protection from
malpractice claims.” Petrou v. South Coast Emergency Group, 119
Cal.App.4th 1090 (2004). The language of subsection (c) in the statute was
interpreted to mean that the professional expertise required of the witness
was skill and knowledge acquired on the job as an emergency room
physician. Miranda v. National Emergency Services, Inc., 35 Cal.App.4th 894,
905 (1995). “In other words, academic credentials, or experience acquired
while serving as an “on-call” specialist, or emergency room experience
gained solely in hospitals or other facilities which do not deliver emergency
care in essentially the same manner as it is delivered in the locale where the
cause of action arose, are not enough, singly or together, to meet the
demands of subdivision (c) of section 1799.110.” Id., at 905-6. Relying on
this standard, the court in Miranda upheld the exclusion of testimony from a
witness who was not an emergency room physician but an orthopedic
specialist “on call” to the emergency room to consult on and treat orthopedic
injuries. The court stated, “[i]n a professional negligence action against an
emergency room physician, an expert called to testify about issues relating
to the relevant standard of care ought to be a physician who has had
“substantial professional experience” in treating patients while assigned to
duty in an emergency room as an emergency room physician.” Id., at 906.
Code §1799.110 has been rigidly applied in California to even exclude
the testimony of witness’s who, even though they possess substantial
expertise in the issue at hand, lack the requisite experience in the

5
emergency room. For example, in Sigala v. Goldfarb, the expert witness was
a nationally recognized expert in the field of trauma care but had not been
assigned to provide emergency medical coverage in a general acute care
hospital emergency department in almost 17 years and had never worked as
an emergency room physician. Sigala v. Goldfarb, 222 Cal.App.3d 1450,
1453 (1990). The trial court precluded testimony from this witness,
observing that even if the witness “is the most qualified expert in the world,
the statute is very explicit and limits the Court, and his testimony shall not
be admitted unless he has substantial professional experience within the last
five years while assigned to provide emergency medical coverage in a
general, acute care emergency department.” Sigala, 222 Cal.App.3d at
1454. On appeal, the reviewing court upheld the trial court’s decision,
stating that the purpose of §1799.110 “is to encourage the provision of
emergency medical care by preventing malpractice claims based on the
assertion that an emergency room physician fell below the standard of care
which could have been provided by a specialist in the particular field acting
under nonemergency conditions.” Id., at 1455 (citation omitted).
Likewise, in Florida, a similar statute has been enacted. See F.S.A.
§766.102(6)(a). In Fuentes v. Spirer, the court determined that this statute
“does not require that the standard of care expert against an emergency
room physician also be an emergency room physician.” Fuentes v. Spirer,
766 So.2d 1081, 1082 (Florida 2000). Instead, it is the experience of the
expert that is important. The court stated that the expert testimony
§766.102 was designed to prevent was “an ill-informed “opinion” that the
care given by an emergency room physician fell below the standard of care
which could have been provided by a specialist in the particular field acting
under nonemergency conditions.” Id. Therefore, a critical care and trauma
specialist, with work experience in the emergency department of the hospital
and who is intimately involved in the care of emergency room trauma
patients, was qualified to testify against an emergency room physician.
The existence of the California and Florida statutes indicates that other
legislatures have determined that additional regulations (in addition to the
ones covering expert witness qualification in general) are needed in order to
distinguish emergency providers from non-emergency providers. Drawing a
comparison between California and Alaska, it would seem then that Alaska
has not yet felt the need to adopt a statute specifically related to physicians
who practice emergency care. Currently, the only statute in Alaska
addressing expert witness qualification is §09.20.185, which does not
distinguish between emergency providers and non-emergency providers. In
fact, the language of the statute more closely resembles those statutes
relied on by the courts which held that an expert’s qualification should be
based on his knowledge, skill, training and experience in a certain discipline
or field of practice, not his designated area of specialty. Having this Court
essentially write in a requirement in §09.20.185 that only emergency
providers are qualified to testify regarding other emergency providers does
not make sense in light of the cases discussed above. Following California’s

6
lead, this determination should be made by Alaska’s legislature, not its’
courts.

B. Discovery of Work Product Considered by Expert Witness

Alaska Civil Rule 26(a)(2) sets forth the disclosures required to be
made for an expert witness. Subpart (B) requires that the disclosure be
accompanied by a written report which shall contain “the data or other
information considered by the witness in forming the opinions[.]” Alaska R.
Civ. P. 26(a)(2)(B). The Alaska Rule is a similarly worded version of the
Federal Rule. The language that now appears in Federal Rule 26(a)(2)(B)
was added by an amendment in 1993. The amendment was intended to
address the “widely divergent views as to the discoverability of work product
information that had been shared between counsel and a testifying expert.”
Herman v. Marine Midland Bank, 207 F.R.D. 26, 28 (W.D. N.Y. 2002) (quoting
Karn v. Ingersoll-Rand, 168 F.R.D. 633, 635-6 (N.D. Ind. 1996)). The Advisory
Committee notes to this amendment indicate that the committee’s
exploration of ways to enhance expert reliability was driven by concern
about the trustworthiness of expert witnesses. Gall v. Jamison, 44 P.3d 233,
237 (Colo. 2002) (citing Fed.R.Civ.P. 26(a)(2) advisory committee’s note
(1993 amendment)). Furthermore, in discussing the amendment, the
advisory committee stated, “[g]iven this obligation of disclosure, litigants
should no longer be able to argue that materials furnished to their experts to
be used in forming their opinions - whether or not ultimately relied upon by
the expert - are privileged or otherwise protected from disclosure when such
persons are testifying or being deposed.” Fed.R.Civ.P. 26(a)(2) advisory
committee’s note (1993 amendment).
Following this amendment there was still confusion among the courts
as to how the Rule was to be applied. A 1994 law review article provides a
thorough analysis of the issue and offers a solution, which, as discussed
below, has become the rule followed by the majority of courts. See Lee
Mickus, Discovery of Work Product Disclosed to a Testifying Expert Under the
1993 Amendments to the Federal Rules of Civil Procedure, 27 Creighton L.
Rev. 773 (1994). In his article, Mr. Mickus notes that the continuing
confusion among the courts, even in light of the intended purpose of the
amendment, is due to the apparent conflict between Rule 26(a)(2)(B) and
26(b)(3). Id., at 778. While amended Rule 26(a)(2)(B) requires a party to
turn over to the opposing party a complete description of materials
considered by a testifying expert, Rule 26(b)(3) orders the court to protect
against disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney. However, the conclusion of the article is that this
conflict should be resolved in favor of discovery when applied to experts who
will testify at trial.

The act of disclosing to a testifying expert work product

materials originating with counsel and relating to the subject of
the expert's testimony similarly does not implicate the policies

7
 of the work product doctrine. Encouraging free thinking and full
investigation of the usefulness of legal strategies justifies work
product protection only as to the development of the legal
information. Once the work product materials are created, the
work product policies provide no rationale for protecting further
uses of the material, if those uses do not themselves constitute
work product. Putting work product material relating to the
subject of testimony in the hands of a testifying expert can
have only two purposes: to inform the expert regarding factual
aspects of the litigation that might affect the expert's opinion,
or to influence or prompt the expert to adhere to an opinion
that favors counsel's legal theory. Neither act of disclosure
creates or aids the creation of legal information.

Id., at 785.
Furthermore, allowing work product protection could encourage
counsel to use only work product materials in preparing an expert to give
testimony in order to avoid disclosure. Id., at 787. As the article notes, the
fact that expert testimony is more vulnerable to improper influence than
other types of testimony is a compelling reason to allow discovery.

Concern that counsel is subtly or blatantly engineering the

expert's opinion gives a new significance to communications
from counsel to the expert, as these may contain counsel's
overt or covert suggestions about how the expert should
structure his opinion. Although the information base from which
the expert works is discoverable, applying work product
protection to communications from counsel would render
undiscoverable counsel's manner of packaging and organizing
information conveyed to the expert, as well as counsel's
suggestions about the significance or proper uses of particular
pieces of information. Stated another way, using the work
product doctrine to protect materials disclosed to a testifying
expert and which relate to the subject of the expert's testimony
prevents the discovery system from operating to fulfill one of its
primary purposes: advancing the truth-finding process by
revealing improper influences of testimony.

Id., at 790. Without access to the communications between counsel and the
expert, the cross-examiner cannot effectively question the expert on “the
extent to which counsel’s presentation of the factual background or overt
suggestions have shaded the expert’s testimony[.]” Id., at 790-1.
The article concludes that a discovery-oriented rule can best protect
against these problems for several reasons. “First, allowing discovery of all
examined materials relating to the subject of the expert's testimony
recognizes that the work product doctrine is not concerned with protecting
materials that shape evidence, while the policy of liberal discovery requires
that access be had to those documents in order to demonstrate to the jury
the degree to which the communications influenced the expert in reaching
his conclusions.” Mickus, at 803. Second, a rule allowing for discovery
would adequately inform counsel ex ante of the consequences of disclosure.

8
By knowing in advance that any material disclosed to an expert would be
discoverable, counsel can weigh the costs and benefits of his or her actions
and act accordingly. Furthermore, the rule does not incorporate standards
that require a considerable amount of interpretation by the courts. If the
expert reviewed the material, then it is open to discovery. Finally, allowing
for discovery could have a positive incentive effect on attorneys. “Knowing
that all materials used by the expert to prepare his opinion will be
discovered, lawyers must be much more careful about “what they
communicate and about how they package the information they ask their
experts to review.” Opening materials communicated between the lawyer
and the expert to discovery and cross-examination may even reduce the
amount of editorializing, coaching, and other signaling or information-
manipulating by counsel that takes place in these materials.” Id., at 804
(citation omitted). Taken together, these policy concerns support the
adoption of a discovery-oriented rule.
While courts in Alaska have not yet considered this matter, several
foreign courts have, and their decisions provide a good analysis of how
courts in other jurisdictions are handling the issue. Gall v. Jamison involved a
medical malpractice claim brought against two doctors. Gall, 44 P.3d 233.
The plaintiff in the case retained an expert, a Dr. King. The defendant
served a notice of deposition on Dr. King requesting that she produce all
correspondence to and from plaintiff’s counsel. Plaintiff’s counsel admitted
that his letter to Dr. King “included a discussion of deposition testimony that
he considered important, an assessment of how defendants’ actions may
have fallen below the standard of care, and citation to medical journals that
he deemed relevant.” Id., at 234. Plaintiff argued that this correspondence
contained counsel’s mental impressions and opinions and was protected
from discovery as work product. Defendant argued that any information
provided to a testifying expert was discoverable and outside the work
product doctrine. The trial court determined that counsel’s communications
to the expert witness were neither privileged nor work product and that
decision was upheld by the Colorado Supreme Court.
Similar to the point made in the law review article discussed above, the
court in Gall is quick to note that the “rule of disclosure embodied in Rule
26(a)(2) shares an uneasy coexistence with the attorney work product
doctrine[.]” Id., at 235. The court notes that this conflict has led to a clear
split of opinion among courts considering whether the work product privilege
is waived by disclosure of the documents to a retained expert witness. Id., at
236. However, “the weight of authority, and the more persuasive opinions,
have held that disclosure of work product to a testifying expert waives the
work product privilege.” Id., at 238 (citing Weil v. Long Island Sav. Bank,
FSB, No. CV-94-1292, 206 F.R.D. 38 (E.D. N.Y. 2001); Simon Prop. Group v.
mySimon, Inc., 194 F.R.D. 644 (S.D. Ind. 2000); Lamonds v. Gen. Motors
Corp., 180 F.R.D. 302, 305-6 (W.D. Va. 1998); Musselman v. Phillips, 176
F.R.D. 194, 199-202 (D. Md. 1997); B.C.F. Oil Refining, Inc. v. Consol. Edison
Co. of New York, Inc., 171 F.R.D. 57, 64-7 (S.D. N.Y. 1997); Barna v. United

9
States, No. 95C6552, 1997 WL 417847 (N.D. Ill. 1997) ; Furniture World, Inc.
v. D.A.V. Thrift Stores, Inc., 168 F.R.D. 61, 62 (D. New Mex.1996); Karn v.
Rand, 168 F.R.D. 633, 648-9 (N.D. Ind. 1996)). In regards to the plaintiff’s
argument, which was supported by the minority of jurisdictions, the court
stated that that view was “incompatible with the clear import of the
amended Rules” and was “inconsistent with the intent of the drafters.” Id.,
at 238.
The court stated that strong public policy considerations supported a
construction of Rule 26(a)(2) favoring broad disclosure. Id., at 239. “A
bright-line rule promotes efficiency, fairness, and the truth seeking process”
and more importantly, “a bright-line disclosure rule advances the truth
seeking function of the discovery rules.” Id. Without this disclosure, an
adverse party would be unable to determine the extent to which the expert’s
opinion has been shaped or influenced by the counsel retaining the expert
and therefore, would be unable to conduct a full and fair cross-examination
of the expert. Gall, 44 P.3d at 240 (citation omitted). Notably, the policy
considerations discussed by the court as favoring the bright-line rule are
virtually identical to the rational espoused by Mr. Mickus in his law review
article, as discussed above. In discussing the apparent conflict between a
bright-line rule and the work product doctrine, the court in Gall stated,

A bright-line rule's promotion of the truth seeking function of

discovery does not compromise the strong policies underlying
the work product doctrine. The work product doctrine is
intended to permit an attorney to prepare her case by
distinguishing relevant from irrelevant facts, testing novel legal
theories, and deliberating over tactics and strategy. These
objectives are not undermined by a bright-line rule because
divulging opinion work product to a testifying expert “does not
result in counsel developing new legal theories or in enhancing
the conducting of a factual investigation. Rather, the work
product either informs the expert as to what counsel believes
are relevant facts, or seeks to influence him to render a
favorable opinion.”

Id., 44 P.3d at 240 (citation omitted).

The court concluded, “attorney work product materials lose their
privileged status when disclosed to, and considered by, a testifying expert.”
Id., at 241. “[A]n expert considers documents or materials for the purposes
of Rule 26(a)(2)(B) where she reads or reviews them before or in connection
with forming her opinion, even if she does not rely upon or ultimately rejects
the documents or materials.” Id.
Similarly, in Herman v. Marine Midland Bank, a U.S. District Court case
from New York, the court held that the amendments to Rule 26 favor
disclosure. “The revised rule proceeds on the assumption that fundamental
fairness requires disclosure of all information supplied to a testifying expert
in connection with his testimony. Indeed, we are quite unable to perceive
what interests would be served by permitting counsel to provide core work

10
product to a testifying expert and then to deny discovery of such material to
the opposing party.” Herman, 207 F.R.D. at 29 (quoting In re Pioneer Hi-
Bred Int’l, Inc., 238 F.3d 1370, 1375-6 (C.A. Fed. (Mo.) 2001)). The court
went on to state, “the overwhelming majority of district courts in this Circuit
as well as in other jurisdictions have concurred with the Federal Circuit’s
ruling that the expert disclosure requirement of Rule 26(a)(2)(B) trumps the
substantial protection otherwise accorded opinion work product under Rule
26(b)(3).” Id. (citation omitted). Quoting from another case, the Herman
court noted,

Such discovery enables counsel, both through deposition of an

expert and later cross-examination at trial, to expose risks of
non-objectivity resulting from receiving attorney comments by
an expert in the course of formulating his opinion. Preventing
access to such information, even if constituting “core” work-
product, therefore impedes informed consideration of the case
and proper evaluation of any expert's report included in
summary judgment motions, for purposes of settlement and,
ultimately, at trial.

Id. (quoting W.R. Grace & Co. v. Zotos Int’l, Inc., 2000 WL 1843258 (W.D.
N.Y. 2000)).

V. Conclusion
Following the reasoning of the courts discussed above, your Honor
should adopt the majority rule and allow for the discovery of materials
considered by an expert witness in forming his opinion, even if that material
would otherwise be protected as attorney work-product. Likewise, based on
the reasoning discussed above, your Honor should allow Plaintiff’s expert Dr.
Spears to testify regarding the standard of care for Defendant Dr. Stein.

VI. Recommendation
Your Honor should DENY Defendant’s motion to preclude expert
testimony.
Your Honor should GRANT Plaintiff’s motion to compel.

11