Legal Memorandum: Disclosure of an Expert Witness Opinions in LA, NM

Issue: Must the opinions that an expert witness will express and the basis of those opinions be disclosed in discovery in the Tenth, and Fifth Circuits?

Rule 26(B) of the Federal Rules of Procedure require the disclosure of any expert witnesses must be accompanied by a signed, written report containing all the opinions the expert will express and the basis of those opinions as well as other information. 

Jones v. Wike, 654 F.2d 1129, 1130 (5^th Cir. 1981) (holding when defendant produces an “expert opinion” supporting summary judgment motion, plaintiff must produce expert opinion to survive motion and upholding summary judgment where defendant produced expert affidavits and plaintiff did not).

Holley v. Evangelical Lutheran Good Samaritan Society, 588 Fed Appx. 792, No. 13-2041, 792 (10^th Cir. Oct. 23, 2014) (holding under New Mexico law expert testimony necessary to establish standard of care, breach, and proximate cause of medical malpractice because the average jury would know little about risks of medical care unless negligence is overt enough for layman to understand)

Kamal K. Patel v. Resty Baluyot, Doctor’s Hospital, Unidentified Party, Unknown Number of John Does, No. 09-40272, 384 Fed. Appx. 405, 408 (5^th Cir. Jun. 30, 2010) (holding that unless the treatment is a matter of common knowledge or is within the experience of a layman, expert testimony to establish breach or causation).

Zuls v. United States, No. 95-2029, 1995 U.S. App. LEXIS 16635 (10^th Cir. Jul 7, 1995) (observing New Mexico Supreme Court has described the “administration of medicine” as a “field of knowledge in which only an expert could give a competent opinion” and holding […]