In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

* * * * * * * * * * * * * * * * * * * * *

RICHARD T. DAHL, *

* No. 13-98V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: April 2, 2014

*

SECRETARY OF HEALTH * Motion to exclude expert witness.

AND HUMAN SERVICES, *

*

Respondent. *

* * * * * * * * * * * * * * * * * * * * *

Sheila Ann Bjorklund, Lommen Abdo Law Firm, Minneapolis, MN, for petitioner.

Julia W. McInerny, United States Dep’t of Justice, Washington, DC, for 

respondent.

RULING DENYING MOTION TO EXCLUDE EXPERT TESTIMONY1

On October 8, 2013, petitioner, Richard Dahl, moved to exclude 

respondent’s expert, Dr. Gerald Raymond. Mr. Dahl contends that a conflict of 

interest requires Dr. Raymond’s disqualification. Dr. Raymond is currently the 

head of the hospital unit where Mr. Dahl sought treatment for his alleged vaccine 

injury. Mr. Dahl argues that Dr. Raymond’s position in the department where Mr. 

Dahl sought treatment and the potential for Mr. Dahl to seek treatment from Dr. 

Raymond in the future requires the disqualification of Dr. Raymond as 

respondent’s expert.

During the time Mr. Dahl was treated at the hospital, Dr. Raymond was 

neither a member of the medical staff nor a member of the faculty of the affiliated

 

1

The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 

2002), requires that the Court post this order on its website. Pursuant to Vaccine Rule 18(b), the 

parties have 14 days to file a motion proposing redaction of medical information or other 

information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special 

master will appear in the document posted on the website. 
2

university. Mr. Dahl is unable to show that a confidential or privileged 

relationship existed between himself and Dr. Raymond. Additionally, Mr. Dahl 

cannot show Dr. Raymond was in possession of privileged information as a result 

of a confidential relationship. Consequently, it is not appropriate to exclude Dr. 

Raymond’s expert testimony for failing to comport with the American Medical 

Association Code of Medical Ethics (“Code of Medical Ethics”) or any comparable 

standard. Therefore, the motion is denied.

I. Relevant Medical History

Before his alleged vaccine injury, Mr. Dahl’s medical history included 

several significant medical events, including a 2010 diagnosis of leukodystrophy. 

Exhibit 14 at 44-57. Leukodystrophy encompasses various types of 

neurodegeneration in cerebral white matter. Dorland’s Illustrated Medical 

Dictionary 1029 (32d ed. 2012). One subset of regressive leukodystrophy common 

in young people is vanishing white matter disease, which can cause stiffness and 

spasticity of the limbs and optic atrophy. Id. at 544.

After his leukodystrophy diagnosis, Mr. Dahl received the flu vaccine on 

November 2, 2011. Exhibit 2 at 1. By December 28, 2011, Mr. Dahl was unable 

to walk. Exhibit 15 at 139. On January 1, 2012, he was admitted to North 

Memorial Medical Center (“North Memorial”). He was discharged from North 

Memorial with a diagnosis of Guillain-Barré syndrome (“GBS”) on January 10, 

2012. Id. at 148; exhibit 5 at 159.

Throughout 2012, Mr. Dahl received a variety of different diagnoses for the 

cause of his persistent ailments, including GBS, leukodystrophy, or a combination 

of both. See generally exhibits 5–20. Most of these visits are not relevant to the 

petitioner’s motion. 

For purposes of Mr. Dahl’s motion, the important appointments occurred at 

the University of Minnesota – Fairview Medical Center and Amplatz Children’s 

Hospital (“FMC”). Exhibit 8 at 1–54. Neurologists Dr. Brandon Peters and Dr. 

Peter Karachunski treated him, starting on April 30, 2012. Id. Dr. Peters’

assessment, with which Dr. Karachunski agreed, was that Mr. Dahl’s symptoms, 

such as loss of reflexes, were consistent with leukodystrophy. Id. at 9. Dr. Peters 

did not make a diagnosis of GBS. Id. Dr. Karachunski separately stated that 

diagnostic results were inconsistent with GBS and he ordered genetic tests. Id. at 

14–15. On June 20, 2012, genetic test results were positive for childhood ataxia 

with CNS hypomyelination/vanishing white matter disease (CACH/VWM), a 
3

subtype of leukodystrophy, and Dr. Karachunski confirmed this diagnosis on June 

22, 2012. Id. at 23, 53.

Mr. Dahl last sought treatment from Dr. Karachunski at the pediatric 

neurology practice group at FMC on August 7, 2012. Pet’r’s Reply at 3; exhibit 8 

at 59. Mr. Dahl states he was last treated at FMC for pain management in October 

2012. Pet’r’s Reply at 3. Dr. Raymond, respondent’s expert, joined FMC in 

December 2012. Exhibit B at 2. Dr. Karachunski updated Mr. Dahl’s records in 

February 2013. Pet’r’s Reply at 3.

II. Procedural History

On February 5, 2013, Mr. Dahl filed a petition for compensation under the 

National Vaccine Injury Compensation Act, 42 U.S.C. § 300aa-10 through 34 

(2012) (“Vaccine Act” or “Program”). Mr. Dahl alleged that the flu vaccine he 

received on November 2, 2011, caused him to suffer GBS. The flu vaccine is 

listed in the Vaccine Injury Table as a vaccine covered by the Vaccine Act. See 42 

C.F.R. § 100.3(a).

With his petition, Mr. Dahl filed medical records, which he supplemented 

later. Exhibits 1-22. On June 25, 2013, respondent reviewed the medical records 

and stated her position that compensation under the Program is not appropriate 

because Mr. Dahl has not demonstrated by preponderant evidence that the flu 

vaccine caused his illness. Resp’t’s Rep’t. 

During a July 16, 2013 status conference, the Secretary identified Dr. 

Raymond, a specialist in leukodystrophy, as her expert. Respondent filed Dr. 

Raymond’s expert report (exhibit A) on September 27, 2013. According to Dr. 

Raymond, Mr. Dahl suffered from a subset of leukodystropy, CACH/VWM. This 

illness, Dr. Raymond contends, was not caused or affected by the flu vaccine. See

exhibit A at 9. 

On October 8, 2013, Mr. Dahl filed a motion to exclude Dr. Raymond as 

respondent’s expert, arguing Dr. Raymond’s position at FMC where Mr. Dahl had

been treated created a conflict of interest. Pet’r’s Mot. to Exclude. On November 

8, 2013, the Secretary filed a response to Mr. Dahl’s motion, arguing that no 

conflict of interest exists. Resp’t’s Resp. On November 15, 2013, Mr. Dahl filed a 

reply in support of his motion to exclude. Pet’r’s Reply. This issue is ready for 

adjudication.
4

III. Standard for Disqualifying an Expert Based Upon a Conflict of Interest

Neither the Vaccine Act nor the Vaccine Rules set forth a standard for 

special masters to follow in determining whether a conflict of interest precludes the 

presentation of a particular expert’s opinion. Likewise, the Rules of the Court of 

Federal Claims and the Federal Rules of Civil Procedure do not address this topic. 

In absence of this guidance, case law should be consulted. 

The most useful case is Hanlon v. Sec’y of Health & Human Servs., 191 

F.3d 1344 (Fed. Cir. 1999), a case involving tuberous sclerosis. In that case, the 

petitioners objected to the Secretary’s retention of a doctor who was the foremost

expert in tuberous sclerosis, because he had testified on behalf of other petitioners 

with tuberous sclerosis whom the Hanlons’ attorney represented. The special 

master permitted the Secretary to retain the doctor. See Barnes v. Sec’y of Health 

& Human Servs. No. 92–0032V, 1997 WL 620115, at *1-5 (Fed. Cl. Spec. Mstr. 

Sept. 15, 1997) (allowing the doctor’s testimony), aff’d sub nom. Hanlon, 191 F.3d 

1344.

At the Federal Circuit, the petitioners maintained that the special master 

erred in not excluding respondent’s expert’s opinion. The Federal Circuit observed 

that Congress delegated to special masters “wide discretion with respect to the 

evidence they would consider.” Hanlon, 191 F.3d at 1349–50 (quoting 

Whitecotton v. Sec’y of Health & Human Servs, 81 F.3d 1099, 1108 (Fed. Cir. 

1996)). The Federal Circuit held disqualification is not required “unless it is 

reasonable to conclude that the expert possessed confidential information that 

would prejudice the petitioner.” Id.

2

The Court of Federal Claims interpreted and followed Hanlon in Return 

Mail, Inc. v. United States, 107 Fed. Cl. 459, 461 (2012). In Return Mail, the 

United States Postal Service moved to exclude a retired postal executive as the 

opposing party’s expert because the expert’s former position made him privy to 

privileged information at the center of the litigation. Id. at 461–62. 

The Court of Federal Claims stated where an expert witness switches parties 

during a legal proceeding, that expert must be disqualified. Return Mail, Inc., 107 

Fed. Cl. at 461. In all other circumstances, determining whether an expert should 

 

2 As a decision from the Federal Circuit, Hanlon is precedent that binds judges and 

special masters of the Court of Federal Claims.
5

be disqualified requires affirmative answer to two questions. First, did the expert 

witness and the party requesting disqualification have a confidential relationship? 

And second, in the course of that relationship did the moving party “disclose any 

privileged or confidential information relevant to the proceeding?” Id.3 The court 

denied the motion, as the United States Postal Service did not show that the expert 

had access to specific information nor did it produce any document showing the 

expert was present when privileged or confidential information was discussed. Id.

at 463–68.

IV. The Parties’ Arguments

Neither party cited Hanlon or Return Mail in their briefs and therefore the 

parties did not phrase their arguments with reference to Hanlon or the Return Mail

two-part test. Nevertheless, their arguments implicitly touch on the basic inquiries. 

Mr. Dahl argues that Dr. Raymond’s participation as respondent’s expert 

means a conflict of interest exists because Dr. Raymond possesses confidential 

information about Mr. Dahl’s health and will offer an opinion adverse to Mr. 

Dahl’s case. Mr. Dahl raises several broad arguments for excluding Dr. Raymond 

as an expert. The first three attempt to establish the existence of a confidential 

relationship between Dr. Raymond and Mr. Dahl.

First, Mr. Dahl points out that he was treated by Dr. Karachunski in the 

Pediatric Neurology department at FMC. Pet’r’s Mot. to Exclude at 2. After Mr. 

Dahl was last treated by Dr. Karachunski, Dr. Raymond joined the practice group 

and is now a colleague of Dr. Karachunski. Id. Because Dr. Raymond is a part of 

the Neurology Clinic, Mr. Dahl contends that the conflict which would preclude 

Dr. Karachunski from testifying is imputed to Dr. Raymond, even though Dr. 

Raymond was not employed at FMC at the time. Id. at 3–4. Mr. Dahl argues that 

the Code of Medical Ethics requires that Dr. Raymond be disqualified from 

testifying, as specialty and group medical practices treat the patients of the group 

as patients of each individual doctor in that group. Id. at 3. 

 

3

The Court of Federal Claims has articulated a third factor, which is considered when the 

two questions addressed above are answered in the affirmative. In circumstances in which there 

are few knowledgeable experts willing to testify, the scales would tilt in favor of denying 

disqualification. Return Mail, 107 Fed. Cl. at 461–69 (declining to address the third factor, as 

the answers to the first two questions were negative).
6

Second, Mr. Dahl also argues that Dr. Raymond’s position at FMC is similar

to the other situations requiring disqualification. Id. at 4–6. Mr. Dahl’s second 

argument analogizes the current situation to insurance administrators who 

determine eligibility under ERISA and to the attorney-client privilege. See id. Mr. 

Dahl argues that Dr. Raymond simultaneously received money from respondent for 

his expert testimony and from Mr. Dahl’s insurance company for his treatment, 

raising the specter of impropriety. Id. at 7; Pet’r’s Reply at 5.

Third, Mr. Dahl argues for disqualification based on potential future events. 

In his original motion, Mr. Dahl states “it is entirely foreseeable that Petitioner will 

be under the direct care of Dr. Raymond at some time.” Pet’r’s Mot. to Exclude at 

3. In his reply, Mr. Dahl explains that he might return to FMC and have future 

interactions with Dr. Raymond. Pet’r’s Reply at 4, 6. Mr. Dahl, relying on the 

Code of Medical Ethics, claims that because of these potential future interactions,

Dr. Raymond is required to recuse himself and, his having failed to do this, should 

result in his disqualification. Pet’r’s Mot. to Exclude at 4.

For the second question of Return Mail – the disclosure of confidential 

information – Mr. Dahl relies on Dr. Raymond’s access to both Mr. Dahl’s 

previous treating physician and Mr. Dahl’s files. Mr. Dahl argues that Dr. 

Raymond, in his position at FMC, “is in possession of confidential information that 

is potentially extremely prejudicial to petitioner’s vaccine claim.” Pet’r’s Mot. to 

Exclude at 6–7. In his reply, Mr. Dahl contends that Dr. Raymond “has free and 

open access to all of the physicians/staff/providers who participated in [Mr. 

Dahl’s] care.” Pet’r’s Reply at 2–3. Additionally, Mr. Dahl argues “it is not 

without possibility for Dr. Raymond to, even in passing, inquire of these [FMC] 

personnel their experience with [Mr. Dahl] and pass that along to [r]espondent.” 

Pet’r’s Reply at 3. 

Respondent argues that Dr. Raymond was not employed at the FMC when 

Mr. Dahl sought treatment. Resp’t Resp. at 2–7. As a result, Mr. Dahl was not a 

patient of Dr. Raymond and could not have been a treating physician within the 

meaning of the Medical Code of Ethics. Id. at 3. Respondent further states, that if 

Dr. Raymond were considered a treating physician, his exclusion would not be 

mandated by the Code of Medical Ethics because Dr. Raymond’s opinion is not 

adverse to Mr. Dahl’s medical, as opposed to legal, interests. Id. at 5–6. 

Respondent states that Dr. Raymond never saw or was consulted by Dr. 

Karachunski about Mr. Dahl’s care, condition, or treatment. Id. at 2. Respondent 

states Mr. Dahl did not produce any records showing treatment by Dr. Karachunski 

at FMC since August 7, 2012, and no physical therapy or pain management 
7

treatments in 2013. Id. As a result, respondent argues there is not a conflict of 

interest as Mr. Dahl cannot show Dr. Raymond acted inconsistently with the Code 

of Medical Ethics. Id. at 7–8.

V. Discussion

To establish whether Dr. Raymond should be disqualified, Mr. Dahl must 

demonstrate that he and Dr. Raymond had a confidential relationship and, if a 

confidential relationship existed, that Mr. Dahl disclosed confidential or privileged

information to Dr. Raymond. Mr. Dahl has not shown that he and Dr. Raymond 

had a confidential relationship. As such, he cannot show he disclosed any 

confidential information to establish that Dr. Raymond must be disqualified. 

A. Is There a Confidential Relationship between Mr. Dahl 

and Dr. Raymond?

Mr. Dahl’s first argument is based on the concept of imputation of a 

confidential relationship – when Dr. Raymond joined the practice group, he took 

on the same obligations owed to Mr. Dahl by Dr. Karachunski. Mr. Dahl primarily 

argues that the Code of Medical Ethics requires disqualification. Pet’r’s Mot. to 

Exclude at 3. The relevant portion of the Code of Medical Ethics states: “the 

physician must hold the patient’s medical interests paramount.”4In Mr. Dahl’s 

view, Dr. Raymond is breaching his ethical obligation by presenting an opinion 

(that Mr. Dahl’s ailments were caused by leukodystrophy (not the flu vaccine) and 

that Mr. Dahl does not have GBS) that is inconsistent with Mr. Dahl’s legal claim 

(that the flu vaccine caused or worsened Mr. Dahl’s health). Pet’r’s Mot. to 

Exclude at 3–4, 6; Pet’r’s Reply at 4. Mr. Dahl cites no cases in support of the 

claim that the Medical Code of Ethics requires disqualification of Dr. Raymond. 

The cases interpreting the Code of Medical Ethics distinguish a person’s 

litigation interests from his or her medical interests. The Code of Medical Ethics 

declaration that the physician must hold the patient’s medical interests paramount 

does not “impose a duty to loyalty upon a physician not to disagree with the 

patient’s litigation position.” In re Zimmer Nexgen Knee Implant Prod. Liab.

 

4 Opinion 9.07 - Medical Testimony, AMA: American Medical Association (Dec. 2004), 

http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medicalethics/opinion907.page.
8

Litig., 890 F. Supp.2d 896, 908 (N.D. Ill. 2012) (quoting In re Pelvic 

Mesh/Gynecare Litig., 43 A.3d 1211, 1218 (N.J. Super. Ct. App. Div. 2012)). 

Indeed, a physician is obligated to cooperate fully in litigation. Id.; see Opinion 

9.07 (“As citizens and professionals with specialized knowledge and experience, 

physicians have an obligation to assist in the administration of justice.”). 

A determination of whether a patient’s litigation and medical interests

overlap is “a matter of professional judgment by the treating physician, not by the 

patient’s lawyers, or by the courts applying wholesale rules of prohibition and 

disqualification.” In re Zimmer, 890 F. Supp.2d at 908–09; In re Pelvic Mesh, 43 

A.3d at 1224. Even if Dr. Raymond treated Mr. Dahl, then it is Dr. Raymond’s 

decision whether, in his honest assessment, the medical interest of his patient 

“permits expert assistance and testimony adverse to [Mr. Dahl’s] litigation 

interests.” In re Pelvic Mesh, 43 A.3d at 1224 (internal quotation marks omitted).

Mr. Dahl’s second argument, focusing on conflicts of interest in the ERISA 

field or general monetary conflicts, supposes money is received from two opposing 

sources, creating a conflict. For example, in Metropolitan Life Ins. Co. v. Glenn, 

554 U.S. 105 (2008), the United States Supreme Court noted that this type of 

conflict exists when an ERISA plan administrator monetarily benefits from 

denying a claim. Id. at 112. (“Every dollar spent in benefits is a dollar spent by 

the employer; and every dollar saved is a dollar in the employer’s pocket.”). 

However, the situation of an ERISA planner, who benefits monetarily when 

denying payments, and Dr. Raymond, who is being paid to offer his opinion about 

a matter, are too different for adequate comparison.

Regarding attorney-client privilege, a wide number of courts have rejected 

the application of attorney-client privilege to other conflicts of interests. E.g.,

Kendall Coffey, Inherent Judicial Authority and the Expert Disqualification 

Doctrine, 56 Fla. L. Rev. 195, 202–07 (2004) (discussing expert disqualification 

doctrine development since the influential holding in Paul v. Rawlings Sporting 

Goods Co., 123 F.R.D. 271, 278 (S.D. Ohio 1988), which rejected comparing the 

attorney-client privilege to other situations). 

Mr. Dahl’s third argument for disqualification is based on potential future 

events. Mr. Dahl, relying on the Code of Medical Ethics, claims that these 

potential future interactions require Dr. Raymond to recuse himself and, having 

failed to do this, that he be disqualified. See Pet’r’s Mot. to Exclude at 4. 
9

The Code of Medical Ethics states “when treating physicians are called upon 

to testify in matters that could adversely impact their patients’ medical interests, 

they should decline to testify unless the patient consents or unless ordered to do so 

by legally constituted authority.” Opinion 9.07. The language of the Code of 

Medical Ethics Opinion 9.07 looks back in time, protecting a “patient the physician 

has treated” or “when called upon to testify in matters that could adversely impact 

their patients.” Opinion 9.07 (emphasis added). The AMA Council’s report,

5

providing commentary on this standard, notes that a doctor should decline to testify

in “legal proceedings involving a current patient.” Id. It does not inquire into 

future doctor-patient relationships, but only current or past relationships. 

Mr. Dahl last sought treatment from Dr. Karachunski at the neurology 

practice group at FMC on August 7, 2012. Pet’r’s Reply at 3. Mr. Dahl states the 

last time anyone at FMC treated him was in October 2012. Pet’r’s Reply at 4. Dr. 

Raymond joined FMC on December 31, 2012. Exhibit B at 2. After that date, the 

only activity undertaken by the neurology clinic group concerning Mr. Dahl was 

basic record-keeping and did not involve Dr. Raymond. See Pet’r’s Reply at 4 

(explaining that in February 2013. Dr. Karachunski received information from the 

Courage Center clinic, which was then placed in the Mr. Dahl’s medical file). As 

Dr. Raymond’s employment at FMC and Mr. Dahl’s treatment occurred at separate 

times, Dr. Raymond could not have treated Mr. Dahl, and disqualification is not 

required for this reason.6

In sum, Dr. Raymond’s expert opinion should not be excluded. It is 

generally the decision of a treating physician to decide if the medical and litigation 

interests of a patient overlap. Additionally, the Code of Medical Ethics does not 

bar the testimony of a doctor who may treat a litigant in the future, nor do other 

standards. As a confidential relationship did not exist, it is not possible for 

privileged information to have been disclosed. 

 

5 Michael S. Goldrich, Report of The Council on Ethical and Judicial Affairs, AMA: 

American Medical Association 6 (2004), http://www.ama-assn.org/resources/doc/code-medicalethics/907a.pdf.

6 Additionally, disqualification is not a mandated remedy. As respondent correctly states, 

the Code of Medical Ethics specifies when a treating doctor and patient are placed in adversarial 

legal positions, it “may be appropriate for a treating physician to transfer the care of the patient 

to another physician.” Opinion 9.07. 
10

B. Has Dr. Raymond Acquired Any Confidential Information from 

Mr. Dahl? 

Even assuming a confidential relationship, the second question in the twopart test is whether Dr. Raymond obtained any confidential information that would 

prejudice Mr. Dahl. See Return Mail, 107 Fed. Cl. 459, 461 (2012) (stating 

disqualification is not required unless information relevant to the proceeding was 

obtained in the course of the confidential relationship). To show Dr. Raymond 

possessed privileged information, Mr. Dahl must offer some specifics about 

disclosure of relevant privileged information. See id. at 465. 

Mr. Dahl makes several statements about Dr. Raymond’s access to 

confidential information. As the Secretary identified, Mr. Dahl seems to suggest

that Dr. Raymond used patient information that Mr. Dahl did not consent to release 

as part of this litigation. Resp’t’s Resp. at 2 n.3. Dr. Raymond’s affidavit states he 

reviewed only the “provided records” for Mr. Dahl. See exhibit D at 1.

When Mr. Dahl submitted the medical records pertinent to this litigation, he 

waived the confidentiality of those records as far as the parties and their experts are 

concerned.7 Mr. Dahl is obliged to provide “all available medical records 

supporting the allegation in the petition, including physician and hospital records.” 

Vaccine Rule 2(c)(2)(A); accord 42 U.S.C. § 300aa-11(c)(2). Mr. Dahl has 

injected his medical condition and its possible causes into this case. He cannot 

reasonably claim that his filed records are privileged such that they could not be 

analyzed by the undersigned or respondent

Mr. Dahl cannot offer any specifics about the disclosure of privileged 

information to Dr. Raymond beyond that he was employed by an organization that 

possesses privileged information. Mr. Dahl states only that Dr. Raymond could 

possibly acquire such information. For instance, Mr. Dahl argues that Dr. 

 

7 Although, conceivably, Dr. Raymond could access the medical practice’s files, these 

files should replicate the material produced in the litigation. Mr. Dahl’s submission of exhibit 1-

21 has waived the confidentiality of that information as far as the parties (and their associated 

experts) are concerned. See Fisher v. Sw. Bell Tel. Co., 361 F. App'x 974, 978 (10th Cir. 2010)

(stating “a plaintiff waives the [doctor-patient] privilege by placing his or her medical condition 

at issue”) (quoting Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)); Batiste-Davis v. 

Lincare, Inc., 526 F.3d 377, 381 (8th Cir. 2008) (stating a party waives confidentiality of prior 

treatment of a condition when condition is at issue); Doe v. Oberweis Dairy, 456 F.3d 704, 717 

(7th Cir. 2006) (stating when a party places a physiological state at issue, opposing party is 

entitled to discovery of all records of that state).
11

Raymond “can” discuss an opinion about causation with Mr. Dahl’s treating 

physician and Dr. Raymond “can” pass along confidential discussions to 

respondent.8 Pet’r’s Mot. to Exclude at 6. This vagueness undermines much of 

Mr. Dahl’s argument. Without any specifics, it is easy to blur the distinction 

between privileged and non-privileged information. While communications 

between a doctor and patient are generally privileged, see Jaffee v. Redmond, 518 

U.S. 1, 9-12 (1996), Mr. Dahl has waived this privilege at least as far as the 

Secretary and experts she has retained are concerned. Thus, the Secretary’s 

retention of Dr. Raymond afforded him access to Mr. Dahl’s medical records, 

regardless of whether Dr. Raymond worked at an institution that created some of 

those records. Simple access to written medical records cannot be a basis for 

disqualification. 

VI. Conclusion

As Mr. Dahl and Dr. Raymond did not have a confidential relationship and

Dr. Raymond did not receive privileged information, Mr. Dahl’s Motion to 

Exclude Respondent’s Expert is DENIED. Dr. Raymond’s expert testimony 

remains in the record. A status conference is scheduled for Wednesday, April 30, 

2014 at 3:30 P.M. Eastern Time. The Office of Special Masters will initiate the 

call. 

Any questions may be directed to my law clerk, Mary Holmes at 202-657-

6353.

IT IS SO ORDERED. 

s/Christian J. Moran

Christian J. Moran

Special Master

 

8

To the extent that Mr. Dahl asserts that medical personal who treated Mr. Dahl would 

orally convey some information about Mr. Dahl that the provider did not include in the written 

records, this argument seems far-fetched. It seems very doubtful that a busy doctor or staff 

member would (a) observe something special about Mr. Dahl, (b) not have memorialized that 

significant observation, and (c) remember the important, but unrecorded, observation to tell Dr. 

Raymond.