United States District Court, D. Alaska
William Tate, et al . Plaintiffs,
United States of America, et al . Defendants.
ORDER AND OPINION [RE: MOTION AT DOCKET 52]
W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT
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.
medical malpractice action, Plaintiffs allege that
Defendants' negligence in 2013 caused Cynthia Tate to
suffer irreversible brain damage. As a result, Ms. Tate is in
a permanent quasi-vegetative state. Plaintiffs and the United
States have each retained experts to testify regarding Ms.
United States' expert, Robert Shavelle, Ph.D, issued two
reports providing his opinion of Ms. Tate's life
expectancy. 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.” The literature he
considered includes 43 medical research articles written by
various authors, 16 of which were co-authored by Dr. Shavelle
himself. The United States has provided Plaintiffs
with a copy of each of these 43 articles.
are requesting the production of all raw data that was used
to generate the articles upon which Dr. Shavelle
relied. The United States asserts that Dr.
Shavelle is not in possession of any such data.
STANDARD OF REVIEW
party fails to make a disclosure or cooperate in discovery,
the requesting party may move to compel. “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.” The trial court exercises broad discretion
when deciding to permit or deny discovery.
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
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
declaration, Dr. Shavelle states that he did not consider any
raw data in forming his opinions on Ms. Tate's life
expectancy. An “expert's assertion that he
did not consider certain materials when forming his opinion
does not control.” Instead, courts look to objective
evidence regarding whether the witness considered his prior
experiences in forming his opinions in the case at
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 on the fact that Dr. Shavelle presumably
relied on raw data when authoring and co-authoring his
articles. 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 ...