In a recent case, a New Mexico personal injury plaintiff timely identified his treating physicians as potential trial witnesses. He did not timely come forward with any retained experts. According to the court’s ruling, approximately a month after the plaintiff made his disclosures, the defendant, a national retail chain, produced the plaintiff’s medical records. Although the records concerned the plaintiff’s treatment, the plaintiff did not have the records before the plaintiff obtained them. The defendant, with the plaintiff’s concurrence, obtained an extension of the defendant’s expert disclosure deadline.
Subsequently, the defendant disclosed a medical doctor as an expert witness, and indicated that the doctor was expected to testify that the slip and fall accident underlying the litigation was not the cause of the plaintiff’s injuries attributed to the slip and fall. Further the doctor was anticipated to testify that the accident did not aggravate pre-existing conditions suffered by the plaintiff and that the pre-existing factors and conditions were the likely explanations for the treatment and related costs incurred by the plaintiff. In support of this theory of the case, the defendant produced an expert witness report. The defendant’s actions put the plaintiff in a bad position insofar as the plaintiff needed relief from scheduling deadlines to come forward with a competing expert opinion on causation.