dissenting.
By adding the words in "the particular case" to the expert disclosure rule, the majority creates an absolute rule that requires an expert to disclose only the data and information the expert considered and specifically reviewed to formulate an opinion in the particular case for which the expert was retained. Although this principle may be appropriate in many instances, it applies to all cases irrespective of the particular facts and cireumstances of that case and thereby prevents trial courts from exercising their discretion to determine what information an expert considered and, hence, what in fairness should be disclosed to the adversary. In my view, this new construction is unsupported by the language of C.R.C.P. 26(a)(2)(B)(I), and it eliminates a procedural tool which trial courts use to manage civil cases. In addition, the majority's analysis represents a departure from our normal appellate standard of review by which we consider a trial court's discovery orders for an abuse of discretion. Because I disagree with the majority's construction - of - Rule 26(a)(2)(B)(I), I respectfully dissent. In addition, I would apply the abuse-of-discretion standard to the trial court's order in this case and would hold that his decision to exclude Dr. Lee's testimony was neither manifestly arbitrary, unreasonable, nor unfair, and was based in reason. In my view, the defendant's failure to disclose the raw data and methodology of Dr. Lee's recent study illustrates the dilemma of an adversary who wants the benefit of an expert opinion without the burden of full disclosure to his opponent of how the expert reached that opinion.
I.
First, I believe the majority misconstrues Rule 26(a)(2)(B)(I). The language of the rule requires that the proponent disclose "the data or other information considered by the witness in forming the opinions"; it does not contain the words in "the particular case in which she was retained." By limiting disclosure to only data or other information the expert considered in forming her opinions after being retained in the particular case-the majority construes the rule contrary to its purpose and inconsistent with its wording.
The majority relies upon our case Gall ex rel. Gall v. Jamison, 44 P.3d 233 (Colo.2002) *240to support its holding. I read this case somewhat differently. In Gall, this court construed what it means for an expert to "consider" data or other information in forming her opinion. We concluded, as the majority of courts have, that the drafters of the amended federal rule (in 1993) and the equivalent amended Colorado rule (in 1995) intended to broaden the scope of discoverable information by including the word "considered," albeit that (Gall was in the context of attorney work product considered by an expert witness. Id. at 241. We held that an expert "considers documents or materials for the purposes of Rule 26(a)(2)(B) where she reads or reviews them before or in connection with forming her opinion, even if she does not rely upon or ultimately rejects the documents or materials." Id. (emphasis added) (citing Johnson v. Gmeinder, 191 F.R.D. 638, 649 (D.Kan.2000)). We did not limit this holding to information the expert considered after being retained on a specific case or with the purpose of forming an opinion about a particular case; instead, we defined "considered" to include documents the expert reads or reviews "before." This holding, in my view, implies that we intended a contrary conclusion to the one reached today by the majority.
The majority's construction of Rule 26(a)(2)(B)(I) is in tension with most courts that have more broadly construed the equivalent federal rule and the word "considered," and which have favored a bright-line rule favoring full disclosure. See, eg., Emps. Committed for Justice v. Eastman Kodak Co., 251 FRD. 101, 104 (W.D.N.Y.2008) (stating that even "if the expert avers under oath that he did not actually consider certain materials in forming his opinion, that will not control" and adopting an objective definition of "considered" as "anything received, reviewed, read, or authored by the expert, before or in connection with the forming of his opinion, if the subject matter relates to the facts or opinions expressed") (emphasis in original); Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460, 464 (E.D.Pa.2005) (interpreting Rule 26(a)(2)(B) to require the disclosure of "all information ... that a testifying expert generates, reviews, reflects upon, reads, and/or uses in connection with the formulation of his opinions").
There are a number of reasons to require full disclosure and to broadly interpret the phrase "considered ... in forming the opinions." First, it ensures fairness by eliminating "hide-the-ball and 'bardball' tactics." C.R.C.P. 16, Committee emt.; see also Trattler v. Citron, 182 P.3d 674, 679 (Colo.2008) ("Among the many important purposes of discovery, the most central to a fair trial is the parties' production of all relevant evidence."). Second, full disclosure is essential to conduct a full and fair eross-examination. See, e.g., Karn v. Ingersoll-Rand Co., 168 F.R.D. 633, 639 (N.D.Ind.1996) (stating that "useful cross examination and possible impeachment can only be accomplished by gaining access to all of the information that shaped or potentially influenced the expert witness's opinion").
The rule the majority announces works against these considerations. It encourages a "hide-the-ball" tactic in which an expert can shield information considered just before being formally retained, but which may still be in the expert's mind and bear on the expert's opinion, a tactic other courts have discouraged in an analogous context. See, e.g., Eastman Kodak, 251 F.R.D. at 105-106 (requiring defense expert witness to disclose statistical methodologies he used in two studies, even though he was only retained as a litigation consultant at that time, so that the plaintiff could effectively challenge the methodology and conclusions the expert reached in a subsequent study he conducted while retained as a testifying expert witness). I would construe the word "considered" with these policy considerations in mind, and allow the trial judge to compel disclosure of data or information that the expert considered before, if it forms the basis of the expert's proposed opinion in the particular case.
IL.
Turning to my second point, the majority's rule limits a trial court's discretion to determine what data or information the expert considered and what should be disclosed in fairness to the other side. While we construe the meaning of the discovery rules de *241novo, it is well settled that we review a trial court's application of these rules, and the sanctions it imposes for discovery violations, for an abuse of discretion. See, e.g., Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698, 702 (Colo.2009); Scott v. Matlack, Inc., 39 P.3d 1160, 1172 (Colo.2002); KN Energy, Inc. v. Great W. Sugar Co., 698 P.2d 769, 787 (Colo.1985). To find an abuse of discretion we must determine that the trial court's decision is "manifestly arbitrary, unreasonable, or unfair." Pinkstaff, 211 P.3d at 702. Under this standard, we reverse a trial court ruling only if the trial court "exceeded the bounds of the rationally available choices." People v. Shari, 204 P.3d 453, 465 (Colo.2009) (Bender, J., dissenting) (quoting Big Sky Network Can., Ltd. v. Sichuan Provincial Gov't, 533 F.3d 1183, 1186 (10th Cir.2008)). In most cases, there "will not necessarily be a single right answer, but a range of possible outcomes the facts and law at issue can fairly support; rather than pick and choose among them ourselves, [an appellate court] will defer to the district court's judgment so long as it falls within the realm of these rationally available choices." Id. (quoting Big Sky, 533 F.3d at 1186). An abuse of discretion occurs when the trial court "fails to articulate a reason for his decision and no such reason is readily apparent from the record or articulates a reason which has no basis in fact or the reason so articulated is contrary to law. The reason given, however, need not be one that is agreeable to the reviewing court." Id. (quoting In re Bueno, 248 B.R. 581, 582-83 (D.Colo.2000)).
The rationale for this standard supports the trial court's broad discretion to act in a "managerial role" in the discovery process. See Todd v. Bear Valley Village Apartments, 980 P.2d 973, 977 (Colo.1999). The comments to the revised rules of civil procedure state that "ilt is expected that trial judges will assertively lead the management of cases to ensure that justice is served." C.R.C.P. 16, Committee emt. This managerial role is similar to a trial court's role as a "gatekeeper" when deciding whether to admit scientific and expert testimony and to prevent the admission of "junk science." Elsayed Mukhtar v. Cal. State Univ., Hoyward, 299 F.3d 1053, 1063 (9th Cir.2002) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 187, 147-48, 119 S.Ct. 1167, 148 L.Ed.2d 238 (1999)).
The rule announced by the majority strips trial courts of this discretion by limiting disclosure under Rule 26(a)(2)(B)(I) only to information that an expert reviewed "with the purpose of forming an opinion about the particular case at issue and in preparation for testifying," irrespective of the particular factual cireumstances, or how closely connected an expert's previous research may be to her opinion in a particular case. Maj. op. at 286-37. The majority's concern that the "sources of an expert's general knowledge" would be subject to "limitless discovery" without this case-specific limitation is at least arguably questionable. Id. at 287. Trial courts routinely make decisions of relevancy, admissibility, discoverability, and privilege. They are required on a daily basis to distinguish between an expert's general knowledge and education, from information directly relating to the subject matter of the litigation and directly informing the expert's conclusions in a given case. Because trial courts find facts and take live testimony, I believe they should be given the discretion to determine whether an expert considered data or other information, without the absolute limitation announced by the majority.
IH,
Here, the trial court found as a fact that Dr. Lee considered the raw data underlying the POVL Study in forming her opinions for this case. Thus, the court held that Dr. Lee must disclose to the adversaries her source data and the methodology of the study as a precondition for her to testify on behalf of the defendant. Noting that Dr. Lee is the lead author of the POVL Study and one of only two co-authors that reviewed all of the raw source data, the trial court found, "I have no hesitation in concluding that [Dr. Lee] considered the data which underlie the POVL study in forming her opinions in this case." When Dr. Lee failed to produce the study data, the trial court prohibited her from testifying "in order to place the parties on an even footing at trial."
*242The trial court's finding that Dr. Lee considered the POVL Study source data in forming her opinions in this case is well supported by the record. Dr. Lee is the director of the POVL registry and lead author of the POVL Study, which was published in the journal Anesthesiology in October 2006. She is one of only two co-authors of the POVL Study who collected and reviewed all of the patient forms comprising the raw source data for the study.
The defendant's expert disclosures regarding Dr. Lee state that she will testify regarding not only the "conclusions" reached in the POVL Study, but, moreover, "from the data in the study." Twice the defendant's expert disclosures also state that Dr. Lee will testify that "there is no data" from the study supporting the plaintiff's theory of negligence. Only later, in response to the trial court's determination that she was required to disclose the POVL Study data, did Dr. Lee submit an affidavit stating that she had not "reviewed" any data underlying the study in "forming [her] opinions in this matter." This affidavit failed to convince the trial court that Dr. Lee had not "considered" the data. Citing both Dr. Lee's role in reviewing all of the source data and the defendant's expert disclosures stating that Dr. Lee will testify based on "the data in this study," the trial court found that "[alt a minimum, she considered these data to form the opinions expressed in the study, opinions which she reiterates in this case."
In my view, the majority fails to credit appropriately these factual findings when it states that "[n]o evidence exists ... supporting an objective conclusion" that Dr. Lee re-reviewed or relied on the raw data in this case. Maj. op. at 237. The majority concludes that "Dr. Lee relied upon the analysis expressed in the published study, not upon the underlying data." Id. at 238. It reasons that the word "data" in Dr. Lee's expert disclosure only means the POVL Study, not its underlying raw data, id. at 288, a position I suggest appears at odds with this record. While the majority bolsters this rationale with the fact that Dr. Lee's disclosure used similar language to that of one of the defendant's other experts, it is undisputed that Dr. Lee is the only expert to have seen the raw data. In addition, the majority places on the plaintiff the burden of proving that Dr. Lee considered the raw data. Maj. op. at 287-38. This seems counterintuitive. The defendant has the duty to disclose all the information considered by his experts, and only the defendant possesses the facts necessary and essential to prove what data Dr. Lee, his expert, considered. See Oklahoma v. Tyson Foods, Inc., No. 05-CV-829-GKF-PJC, 2009 WL 1578987, at *4 n. 6 (N.D.Okla. June 2, 2009) (noting in dicta this apparent tension of placing the burden of proof on the party not in possession of the data). Here the trial court made the explicit factual finding that Dr. Lee considered the raw data in formulating her expert opinion. The majority in effect disregards this finding despite its record support.
Next, the trial court's order to prohibit Dr. Lee's testimony, as a sanction for failure to disclose her study source data and methodology, was within its discretion and appears reasonable given the broader context of this case. The American Society of Anesthesiologists Committee on Professional Liability created and now funds the POVL registry, which provides the data for the POVL Study. The ASA formed the Committee on Professional Liability to minimize medical malpractice claims against anesthesiologists and thereby reduce the cost of anesthesiologists' malpractice insurance. The committee then founded the Closed Claims Project, a database of case summaries of closed malpractice claims, as its primary approach to achieve this objective.1 The Committee on Profes*243sional Liability sponsors the POVL registry as part of the Closed Claims Project.2
In addition, the POVL Study was published in the ASA's own journal, Anesthesiology. Although the defendant claims the article was peer reviewed for publication, it has never provided the journal's peer review methodology to the court.3 Anesthesiology is the only journal that has peer reviewed the article. Sinee its publication, the study has not been replicated, nor has the study data been released to the public so that other researchers may review its methodology and conclusions.
Given this context, and in light of my interpretation of Rule 26(a)(2)(B)(I) as providing for full disclosure, it was within the trial court's discretion to determine that Dr. Lee had "considered" the data and methodology underlying the POVL Study and to prevent her from testifying unless she disclosed it. The conclusion reached by the study is novel, the defense has failed to produce any independent scientific reviews of its methodology and its findings, and the ASA Committee on Professional Liability, which funded the POVL Study, directly benefits from its findings. In these circumstances, the trial court could have reasonably determined that the plaintiff could not effectively cross-examine Dr. Lee without the raw data. Even if one assumes that Dr. Lee did not re-review the source data since being retained in this case, as the trial court found, there is a reasonable basis to conclude that her study was sufficiently connected to the litigation and recent enough to bear directly on her opinion in this case. Although the majority may not agree with the trial court's decision to exelude Dr. Lee's testimony, I believe that this decision is not one for this court to make. Rather, this sanction lies within the ambit of the trial court's discretion to ensure a fair and impartial trial. As such, the trial court's order here is not manifestly arbitrary, unreasonable, or unfair, and it is based in reason.
Lastly, the majority assigns fault to the trial court for its exclusion of Dr. Lee because of and in spite of the fact that she was the lead author of the POVL Study, which made her the "individual most likely to render a complete and reliable explanation of the POVL Study." Maj. op. at 288. I suggest that this claim proves too much. The defendant retained two other experts, Drs. Newman and Roth, to testify to the ultimate conclusions of the POVL Study. The trial court has ruled that their testimony is admissible and their reliability is not before us. Both doctors have testified more frequently as forensic experts than Dr. Lee, and their hourly rates exceed that of Dr. Lee (Dr. Lee charges $2000/day of trial, Dr. Roth charges $750/hour of trial, Dr. Newman charges $6000/day of trial). However, unlike Dr. Lee, neither Dr. Newman nor Dr. Roth has knowledge of the underlying study data and methodology. This seems to indicate that Dr. Lee's probative value to the defendant in this case is her ability to testify to the raw data underlying the study and her direct involvement in analyzing it. If Dr. Lee's testimony was essential, then the defendant should have obtained and disclosed the raw data so that the plaintiff would have the opportunity to test her conclusions fairly.
I am authorized to state that Justice MARTINEZ joins in this dissent. |
. Although not part of the record, an article on the ASA website discusses the origin of the Closed Claims Project. It states that initially the Committee on Professional Liability sought to solve what they termed the "expert witness problem" by soliciting trial and deposition testimony from members of the ASA who claimed to have been victims of false testimony by plaintiffs' expert witnesses and by publishing that testimony in the ASA newsletter. This approach failed because the members of the committee charged with reviewing the expert testimony were not often convinced that the claimed questionable testimony lacked merit. Thereafter, the committee turned to its current approach, the Closed Claims Project. A second article states that *243through the Closed Claims Project the committee has published several studies that "have been utilized extensively by defense attorneys to defend anesthesiologists of malpractice."
. The POVL registry's website contains a list of the members of the ASA Committee on Professional Liability. It shows that five of the POVL Study's seven authors are members of the committee, including Dr. Lee.
. In March 2009, Anesthesiology retracted three articles it published because the author falsified data. Keith J. Winstein & David Armstrong, Top Pain Scientist Fabricated Data in Studies, Hospital Says, Wall Street J., Mar. 11, 2009, at A12.