Expert Witness Testimony Not Limited to Expert Report Content

By Robyn Hagan Cain on November 04, 2011 | Last updated on March 21, 2019

The First Circuit Court of Appeals ruled recently that the scope of expert witness testimony is not narrowly tailored to the content in a pre-trial expert report.

Frank Gay is the executor of his sister's estate. His sister, Anita, died after a slip and fall accident at a casino. Hospital records listed Anita's death as an accident, and stated that she died as the result of a nonsurvivable closed head injury that caused extensive bleeding in her brain.

The autopsy found that Anita had suffered a "fractured skull with subdural and subarachnoid hemorrhage following acute cerebral hemorrhage." The autopsy report stated that Anita's manner of death was an "accident," from having "collapsed at race track."

Gay made a timely demand for payment of benefits under Anita's accidental death policy with Stonebridge Life Insurance Company. Stonebridge denied the benefit based on its conclusion that Anita's death was not "accidental" within the meaning of the policies. It determined that the occurrence of a stroke - which likely caused the fall - pushed her claim outside the accidental death coverage of the policies.

Gay filed suit for breach of contract, and Stonebridge countered that medical records proved that Anita did not die from an accident.

Stonebridge indicated that it intended to offer expert witness testimony from Dr. Paul Rizzoli, to testify that Anita's death was attributable to the stroke, and timely disclosed Dr. Rizzoli's expert report.

At trial, Gay introduced experts to support his claim that Anita's head injury was the dominant cause of her death. In response, Dr. Rizzoli opined that the skull fracture contributed to Anita's death, but was not "a major cause of death." He elaborated, testifying that the "skull fracture as described doesn't seem like a mortal wound."

Gay moved to strike this testimony because Dr. Rizzoli had only been asked whether the skull fracture had contributed to causing Anita's death, not whether it had been a major cause of her death, but the motion was denied.

The jury returned a verdict in favor of Stonebridge. Gay moved for a new trial pursuant to Federal Rule of Civil Procedure (FRCP) 59(a), arguing that Stonebridge had failed to adequately disclose Dr. Rizzoli's opinion prior to trial as required by FRCP 26(a)(2)(B), which rendered Dr. Rizzoli's conclusion that the skull fracture was not "a major cause" of death inadmissable under FRCP 37(c)(1).

The district court denied the motion, finding that the conclusion had been adequately presented in the expert report, and that there was neither error nor prejudice.

Last week, the First Circuit Court of Appeals affirmed the district court's decision, finding that Dr. Rizzoli's conclusion about the major cause of Anita's death fell within the scope of his previously disclosed expert report.

Do you agree that Gay's case wasn't prejudiced from the court's admission of this expert witness testimony?

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