This appeal arose from a legal malpractice case brought by Plaintiff Holly Rich. An important issue addressed by the Idaho Supreme Court was whether the district court erred in declining to consider Rich’s supplemental expert witness disclosure. Under Idaho Rule of Civil Procedure 26(e)(2), parties are not permitted to diverge from intended testimony in the initial disclosure nor disclose a new opinion outside of the scheduling deadline.
A SUPPLEMENTAL EXPERT WITNESS DISCLOSURE MAY NOT ‘BOOTSTRAP’ THE INITIAL DISCLOSURE
In this case, two of the Defendant’s medical experts testified in a deposition on August 31, 2021, and the next day, Rich filed a supplemental expert witness disclosure, using those depositions to change the foundation from which her expert, Dr. Garber, intended to testify about the local standard of care. Rich claimed that after Dr. Garber reviewed those deposition transcripts, he could testify as to the national standard of care. The district court opinion emphasized that the supplemental disclosure appeared to constitute a shift in the foundation for Dr. Garber’s testimony and recharacterized Dr. Garber from a supposedly local expert to an out-of-area expert who became familiar with the local standard of care through a review of the opposing experts’ deposition testimony. Ultimately, the district court issued a decision striking Dr. Garber’s testimony on the national standard of care supplied in the supplemental disclosure because it was untimely as an initial disclosure that Rich could present in her case-in-chief.
The Idaho Supreme Court opinion noted that, “Rich’s supplemental expert witness disclosure was an effort to bootstrap Dr. Garber’s late opinion on the national standard of care to his timely disclosure as a supposed local expert.” The Court held that the district court was within its discretion to exclude Rich’s supplemental expert witness disclosure. Click here to read the full opinion.
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