On September 28, 2011, the Waco Court of Appeals decided Baker v. Energy Transfer Co, 2011 WL 4489803. In the Baker case, the plaintiffs designated their non-retained medical experts by stating the subject matter on which those experts would testify and then, for their mental impressions and opinions and the basis of their opinions, plaintiffs referred to and incorporated by reference into the designation, previously tendered medical records. However, the plaintiffs did not produce new medical records with their designation or re-produce medical records previously tendered.
The defendants filed a motion to strike the medical experts designation under Rule 193.6 for failing to timely and properly disclose the experts under Rule 194. The Waco Court of Appeals held that the trial court did not abuse its discretion in striking the medical experts’ designation.
First, the court was concerned with plaintiffs’ designation because there were over twenty (20) medical experts identified by plaintiffs in their designation and the plaintiffs did not state the mental impressions or opinions for any of the medical providers. Instead, the plaintiffs incorporated by reference previously tendered medical records for the medical experts mental impressions and opinions. Additionally, the court pointed out that, in the designation, the plaintiffs did not direct the defendants to specific documents from the medical records previously tendered that set forth the mental impressions and opinions of the medical experts. The impression left by the court’s opinion is that designating parties should not require opposing parties to hunt for the mental impressions and opinons the designating party believes a non-retained medical expert will provide in a case.
Although incorporating medical experts’ mental impressions and opinons by reference has been a long established practice by many attorneys in Texas, they should take note of the Baker opinion going forward. Along those lines, designating parties are wise to produce/re-produce the medical records that contain the mental impressions and opinions of the experts they intend to rely upon and then either (1) state the mental impressions or opinions of the non-retained medical experts; or (2) reference specific medical record(s) that set forth the mental impressions or opinions the designating party intends to rely upon so that it does not appear the opposing side will have to hunt for the mental impressions and opinions.
