Expert Witness Report Not Required of Treating Counselor

Disclosure of proposed expert witness testimony is not required when experts are not "specially retained" for litigation, the Wyoming Supreme Court has ruled, affirming the district court's decision.

In Tracy v. Tracy, Wyo., Feb. 22, 2017, Shane Tracy (Ex-Husband) petitioned successfully to modify the child custody provisions from his divorce decree. Renee Buchli (Ex-Wife) appealed the district court's decision, arguing in part that the district court abused its discretion by allowing the Ex-Husband's expert witness to testify even though the the Ex-Husband had failed to disclose his expert's proposed testimony.

The Ex-Husband had moved to modify the custody provisions after the Ex-Wife decided to move 100 miles away. Prior to the move, the children began exhibiting emotional and behavioral problems, and the Ex-Wife enrolled the children in counseling with Deiadra Smidt, a licensed counselor.

In his move to modify the custody provisions, the Ex-Husband designated Smidt as a psychological expert witness, disclosing that Smidt would testify "to the reasons for the children's emotional and psychological issues" and to "to what is in the children's best interest."

The Ex-Wife gave notice that she would depose Smidt, but later cancelled the deposition. Smidt provided both parties with complete records on both children, as well as her curriculum vitae.

Later, the Ex-Wife filed an objection to the designation of Smidt (even though the Ex-Wife had selected Smidt to treat her children). The Ex-Wife objected because Smidt's designation did not include the information she argued was required by the Wyoming Rules of Civil Procedure (W.R.C.P. 26(a)(2)(B)(i)). The Ex-Wife asked the district court not to allow Smidt to testify.

The W.R.C.P. rule (identical to the federal rule) requires a party to accompany the designation of an expert witness with:

• a written report containing a statement of all opinions to be expressed;
• the basis and reasons for those opinions;
• the data or information relied upon;
• any exhibits to be used by the expert;
• the expert's qualifications;
• the expert's publications;
• the compensation to be paid for the study and testimony; and,
• a list of cases in which the expert has testified.

However, the rule allows the court to "otherwise direct", which the district court did, "due to the importance of Smidt's testimony", but it also limited her testimony to "fleshing out the contents of her records."

On appeal, the state Supreme Court agreed with the district court, finding the district court's order "consistent with the purposes of the rule." The district court's scheduling order stated that Rule 26(a)(2) would apply "except when the designated expert was a treating healthcare provider." If the expert was a treating healthcare provider, "no report is required from the expert “provided a complete copy of the treating healthcare provider's records have been provided as part of the initial disclosure or otherwise provided through discovery, and the testimony offered is within the scope of the treatment provided.”"

The state Supreme Court agreed, finding that the W.R.C.P. rule was intended "to limit disclosure requirements relating to treating professionals." As the Court noted, attorneys often have difficulty persuading health care providers "to spend time preparing for trial, and insisting on a burdensome report before they could be called to testify might unduly interfere with the right of patients to present claims or defenses in court." The rule was rather intended to be applied to "experts specially retained for the litigation and those whose job duties include providing expert witness testimony."

The state Supreme Court affirmed the district court's decision.