Tate et al v. United States of America et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
William Tate, et al. )
)
Plaintiffs, ) 3:14-cv-0242 JWS
)
vs. ) ORDER AND OPINION
)
United States of America, et al. ) [Re: Motion at docket 52]
)
)
Defendants. )
)
I. MOTION PRESENTED
At docket 52 plaintiffs William Tate, et al. (“Plaintiffs”) move for an order
compelling discovery pursuant to Federal Rule of Civil Procedure (“Rule”) 37(a).
Plaintiffs’ motion is supported by a memorandum at docket 53 and an affidavit of
counsel at docket 54. Defendant United States of America (“United States”) opposes
Plaintiffs’ motion at dockets 62 and 63. Plaintiffs reply at docket 64. Oral argument
was not requested and would not assist the court.
II. BACKGROUND
In this medical malpractice action, Plaintiffs allege that Defendants’ negligence in
2013 caused Cynthia Tate to suffer irreversible brain damage. As a result, Ms. Tate is
Case 3:14-cv-00242-JWS Document 65 Filed 09/21/16 Page 1 of 4

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in a permanent quasi-vegetative state. Plaintiffs and the United States have each
retained experts to testify regarding Ms. Tate’s life-expectancy.
The United States’ expert, Robert Shavelle, Ph.D, issued two reports providing
his opinion of Ms. Tate’s life expectancy.1 Dr. Shavelle states that in reaching his
opinions he considered “(a) the materials [he] reviewed about Ms. Tate, (b) a large body
of medical literature, (c) standard scientific methods, and (d) [his] education, training,
experience, and expertise.”2 The literature he considered includes 43 medical research
articles written by various authors, 16 of which were co-authored by Dr. Shavelle
himself.3 The United States has provided Plaintiffs with a copy of each of these 43
articles.
Plaintiffs are requesting the production of all raw data that was used to generate
the articles upon which Dr. Shavelle relied.4 The United States asserts that
Dr. Shavelle is not in possession of any such data.
III. STANDARD OF REVIEW
If a party fails to make a disclosure or cooperate in discovery, the requesting
party may move to compel.5 “The party who resists discovery has the burden to show
that discovery should not be allowed, and has the burden of clarifying, explaining, and
supporting its objections.”6 The trial court exercises broad discretion when deciding to
permit or deny discovery.7
1Doc. 62-3 at 3.
2Id.
3Doc. 62-3 at 5-6; doc. 62-4 at 4.
4Doc. 54-1 at 4.
5Fed. R. Civ. P. 37(a)(1).
6DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002).
7See Goehring v. Brophy, 94 F.3d 1294, 1305 (9th Cir.1996).
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IV. DISCUSSION
Rule 26(a)(2)(B)(ii) requires a party to disclose the facts or data considered by its
testifying experts in forming all opinions the witnesses will express. The question
presented here is whether this obligation is broad enough to require disclosure of the
raw data that an expert considered when the expert wrote academic research articles
on the same topic he now seeks to testify about. Based on the plain language of
Rule 26(a)(2)(B), the answer is: it depends on whether the expert considered the raw
data in forming his opinions to be expressed.
When Rule 26(a)(2)(B) was amended in 2010, the Advisory Committee noted
that the “facts or data” that must be disclosed should “be interpreted broadly to require
disclosure of any material considered by the expert, from whatever source, that
contains factual ingredients. The disclosure obligation extends to any facts or data
‘considered’ by the expert in forming the opinions to be expressed, not only those relied
upon by the expert.”8
In his declaration, Dr. Shavelle states that he did not consider any raw data in
forming his opinions on Ms. Tate’s life expectancy.9 An “expert’s assertion that he did
not consider certain materials when forming his opinion does not control.”10 Instead,
courts look to objective evidence regarding whether the witness considered his prior
experiences in forming his opinions in the case at hand.11
Plaintiffs are correct that if Dr. Shavelle considered raw data in forming his
opinions, he would have to disclose those data to Plaintiffs. The problem with Plaintiffs’
motion, however, is that they have not shown that Dr. Shavelle did so. Plaintiffs focus
8Fed. R. Civ. P. 26(a)(2)(B) advisory committee’s note to 2010 amendment.
9Doc. 62-1 at 2 ¶ 11.
10United States v. Dish Network, L.L.C., 297 F.R.D. 589, 595 (C.D. Ill. 2013).
11See In re Mirena IUD Prod. Liab. Litig., No. 13-CV-6586 (CS), 2016 WL 890251, at *49
(S.D.N.Y. Mar. 8, 2016).
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on the fact that Dr. Shavelle presumably relied on raw data when authoring and co-
authoring his articles.12 That is not the same as relying on raw data when forming his
opinions in this case. Plaintiffs have not shown that, in forming his opinions to be
expressed here, Dr. Shavelle either reviewed any of the raw data upon which his
articles rely or considered any such data from memory.
V. CONCLUSION
For the reasons set forth above, Plaintiff’s motion at docket 52 is DENIED.
DATED this 21st day of September 2016.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
12See doc. 64 at 3-4.
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