Missouri Court of Appeals Rules Causation Opinion Offered by Treating Physician at Trial Must Be Disclosed in Discovery

In Ralls v. Soo Line Railroad, plaintiff Shirley Ralls filed a lawsuit under the Federal Employers' Liability Act, claiming that her late husband developed lung cancer due to his exposure to carcinogens while working for Soo Line Railroad. While both parties agreed that the decedent's extensive tobacco use contributed to his cancer, the key issue at trial was whether his exposure to known carcinogens during his employment also played a role in the development of his illness. At trial, Soo Line’s experts testified that smoking was the sole cause of Mr. Ralls’ lung cancer, while Mrs. Ralls’ experts asserted that other causes contributed to the cancer diagnosis, including those he was exposed to during his employment with Soo Line Railroad. The Jury returned a defense verdict.

Mr. Ralls’ treating radiation oncologist was identified by Mrs. Ralls in response to Soo Line’s interrogatories requesting Mr. Rall’s treating physicians. Despite disclosing other experts, neither party specifically disclosed the Treating Physician as a retained or non-retained expert. Soo Line arranged and conducted two depositions of this witness — one during discovery and another to preserve his testimony for trial. During his discovery deposition, the oncologist testified he could not definitively say what caused the cancer because he did not have complete data. Several months later, during his trial preservation deposition, he testified further that he had researched causes of lung cancer such as silica and diesel exhaust since his discovery deposition, and he opined that smoking was the sole cause of Mr. Ralls’s lung cancer and that Ralls’s exposure to diesel exhaust or silica did not contribute to his lung cancer.

Mrs. Ralls appealed the verdict, arguing that the trial court erred (1) in permitting Mr. Ralls’s Treating Physician to offer a causation opinion because the Treating Physician was not disclosed as a non-retained expert: (2) in permitting the Treating Physician to offer opinions at trial that differed from his opinions offered during discovery; and (3) in finding that the Treating Physician satisfied Missouri’s expert witness statute, section 490.065. Soo Line argued Ralls had independent knowledge of the information required by Rule 56.01(b)(7) and disclosure of expert witnesses and Ralls was not surprised by any failure of Soo Line to formally identify the Treating Physician as an expert.

The Court of Appeals agreed with Ralls on the first two points (and said it therefore didn’t need to reach the third point), reversing the trial court’s judgment and remanding the case to the circuit court for a new trial. The Court found that while Ralls knew the treating physician would be a witness for the defense related to her husband’s cancer treatment as a treating physician (he was on the defense’s trial witness list), Ralls was not aware he would offer testimony regarding the specific cause of the cancer based on additional research he conducted in anticipation of trial. The Court further found that by giving these new causation opinions based on research and studies not disclosed during the discovery deposition and not researched by the treating physician during his treatment of Mr. Ralls, his testimony went beyond the realm of a treating physician and required that he be disclosed as a non-retained expert. Citing multiple prior Missouri appellate decisions, the Court held where the defense failed to disclose the Treating Physician as a non-retained expert, his testimony amounted to unfair surprise because his definitive causation opinion was only disclosed at trial for the first time; and as a result, Ralls was unfairly prejudiced.