Tate et al v. United States of America

Filing 65

ORDER denying 52 Motion to Compel. Signed by Judge John W. Sedwick on 9/21/16. (GMM, CHAMBERS STAFF)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ALASKA

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William Tate, et al.

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Plaintiffs,
vs.
United States of America, et al.

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Defendants.
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3:14-cv-0242 JWS
ORDER AND OPINION
[Re: Motion at docket 52]

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I. MOTION PRESENTED
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At docket 52 plaintiffs William Tate, et al. (“Plaintiffs”) move for an order
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compelling discovery pursuant to Federal Rule of Civil Procedure (“Rule”) 37(a).
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Plaintiffs’ motion is supported by a memorandum at docket 53 and an affidavit of
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counsel at docket 54. Defendant United States of America (“United States”) opposes
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Plaintiffs’ motion at dockets 62 and 63. Plaintiffs reply at docket 64. Oral argument
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was not requested and would not assist the court.
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II. BACKGROUND
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In this medical malpractice action, Plaintiffs allege that Defendants’ negligence in
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2013 caused Cynthia Tate to suffer irreversible brain damage. As a result, Ms. Tate is
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in a permanent quasi-vegetative state. Plaintiffs and the United States have each

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retained experts to testify regarding Ms. Tate’s life-expectancy.

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The United States’ expert, Robert Shavelle, Ph.D, issued two reports providing

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his opinion of Ms. Tate’s life expectancy.1 Dr. Shavelle states that in reaching his

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opinions he considered “(a) the materials [he] reviewed about Ms. Tate, (b) a large body

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of medical literature, (c) standard scientific methods, and (d) [his] education, training,

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experience, and expertise.”2 The literature he considered includes 43 medical research

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articles written by various authors, 16 of which were co-authored by Dr. Shavelle

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himself.3 The United States has provided Plaintiffs with a copy of each of these 43

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articles.
Plaintiffs are requesting the production of all raw data that was used to generate

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the articles upon which Dr. Shavelle relied.4 The United States asserts that

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Dr. Shavelle is not in possession of any such data.

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III. STANDARD OF REVIEW
If a party fails to make a disclosure or cooperate in discovery, the requesting

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party may move to compel.5 “The party who resists discovery has the burden to show

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that discovery should not be allowed, and has the burden of clarifying, explaining, and

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supporting its objections.”6 The trial court exercises broad discretion when deciding to

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permit or deny discovery.7

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Doc. 62-3 at 3.

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Id.

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Doc. 62-3 at 5-6; doc. 62-4 at 4.

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Doc. 54-1 at 4.

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Fed. R. Civ. P. 37(a)(1).
DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002).
See 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

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testifying experts in forming all opinions the witnesses will express. The question

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presented here is whether this obligation is broad enough to require disclosure of the

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raw data that an expert considered when the expert wrote academic research articles

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on the same topic he now seeks to testify about. Based on the plain language of

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Rule 26(a)(2)(B), the answer is: it depends on whether the expert considered the raw

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data in forming his opinions to be expressed.

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When Rule 26(a)(2)(B) was amended in 2010, the Advisory Committee noted

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that the “facts or data” that must be disclosed should “be interpreted broadly to require

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disclosure of any material considered by the expert, from whatever source, that

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contains factual ingredients. The disclosure obligation extends to any facts or data

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‘considered’ by the expert in forming the opinions to be expressed, not only those relied

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upon by the expert.”8

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In his declaration, Dr. Shavelle states that he did not consider any raw data in

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forming his opinions on Ms. Tate’s life expectancy.9 An “expert’s assertion that he did

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not consider certain materials when forming his opinion does not control.” 10 Instead,

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courts look to objective evidence regarding whether the witness considered his prior

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experiences in forming his opinions in the case at hand. 11

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Plaintiffs are correct that if Dr. Shavelle considered raw data in forming his

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opinions, he would have to disclose those data to Plaintiffs. The problem with Plaintiffs’

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motion, however, is that they have not shown that Dr. Shavelle did so. Plaintiffs focus

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Fed. R. Civ. P. 26(a)(2)(B) advisory committee’s note to 2010 amendment.
Doc. 62-1 at 2 ¶ 11.

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United States v. Dish Network, L.L.C., 297 F.R.D. 589, 595 (C.D. Ill. 2013).

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See 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-

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authoring his articles.12 That is not the same as relying on raw data when forming his

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opinions in this case. Plaintiffs have not shown that, in forming his opinions to be

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expressed here, Dr. Shavelle either reviewed any of the raw data upon which his

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articles rely or considered any such data from memory.

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V. CONCLUSION

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For the reasons set forth above, Plaintiff’s motion at docket 52 is DENIED.

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DATED this 21st day of September 2016.

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/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT

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See doc. 64 at 3-4.

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