Nursing Home Litigation


family decides to file suit against the nursing home. Te third scenario, where the federal government is the defendant, is also infrequent as there are not very many federally owned nursing home facilities in Maryland.


Simply put, fewer federally-


owned facilities equals fewer claims. Te following section will touch on both those less common instances where both federal procedural rules and federal substantive laws are implemented (where there is a question of federal law); and the more common cases where federal rules of procedure are followed while being coupled with the substantive laws of Maryland (where there is diversity jurisdiction or a federal defendant.)


A. Federal Procedural Rules: Designating an Expert in Federal Court


If you are in federal court then you must follow the


Federal Rules of Civil Procedure. Under these rules, a party must disclose, to all other parties, the identity of any expert witness it may use at trial. Under federal law there are three designations of expert witnesses (1) retained experts, (2) non- retained experts, and (3) hybrid experts. See Fed. R. Civ. P. 26(a)(2). Depending on which type of expert(s) you utilize in your case, this will dictate the documentation and manner in which your expert is disclosed, the amount of details you must disclose, and when you must disclose them.


Te most commonly used expert is a “retained expert.” Tis is an individual who has been retained or specially employed by a party via contract or payment for the purpose of evaluating the claim and subsequently rendering expert opinion testimony on the claim. Payment is not required in order for the expert to be categorized as a “retained expert.” Te party arranging for the expert just has to have the expert review materials related to the case and render testimony to further the case. In addition, the substance of the retained expert testimony is restricted only in that it cannot fall solely within the confines of eyewitness observation testimony. Te retained expert testimony will be based upon the review of any and all materials provided and the professional experience and knowledge about the technical issues in question. Te opinions can vary from testimony regarding breaches in the standard of care by the nursing home facility, to causation, to damages, or all of the above. When an expert witness has been retained by a party, or if their professional duties regularly involve rendering expert testimony, then they must supply a detailed written report which will be disclosed to all other parties and filed with the court. Te report must include: (1) a complete statement of all opinions the witness will express and the basis and reasons for them, (2) the facts or data considered by the witness in forming their opinions, (3) any exhibits that


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