UTAH SUPREME COURT DEFINES WHAT IT MEANS TO BE A "RETAINED OR SPECIALLY EMPLOYED" EXPERT PURSUANT TO RULE 26(b) OF THE UTAH RULES OF CIVIL PROCEDURE
Posted by: Susan Patterson
July 19, 2011

In Drew v. Lee, 2011 UT 15 (March 15, 2011), the Utah Supreme Court interpreted Rule 26 of the Utah Rules of Civil Procedure with respect to what it means to be "retained or specially employed to provide expert testimony." Utah R. Civ. P. 26(a)(3)(B). The issue was whether the trial court properly excluded plaintiff's treating physician who offered opinions on causation of injury when the physician did not provide a written report with those opinions as required by Rule 26. The Supreme Court first distinguished Pete v. Youngblood, which requires a party to designate an expert witness prior to trial, on the grounds that the issue before it was not a question of designation but rather on whether an expert report was required. Because plaintiff had properly designated his treating physician as an expert witness, the Court held that Pete did not answer the question. See id. at ?15. Interpreting the language of Rule 26, the Court determined that Rule 26 contemplates two classes of experts: those who are retained or employed specifically for litigation and those who are not. See id. at ?18. In determining whether an expert was retained or employed for purposes of litigation, the Court discussed that other jurisdictions follow either the substance-based approach or the status-based approach. The majority approach uses a substance-based approach which examines the substance of the expert's testimony; however, the Court noted this approach often produces varying results as it necessarily involves a case-by-case analysis. See id. at ?22. Rejecting the substance-based approach, the Court adopted the status-based approach because of its ease of application. As applied to treating physicians, this approach creates two categories: "(1) physicians the party visited for purposes of medical treatment ("treating physicians") and (2) other physicians who are 'specially retained or employed' for purposes of litigation." Id. at ?23. Those physicians a party seeks out for medical treatment are not retained or employed for purposes of litigation, and thus, they are not required to produce an expert report.

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