The John Crane Decision: What It Means and What It Does Not Mean

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1 The John Crane Decision: What It Means and What It Does Not Mean By Roger T. Creager Virginia attorneys have been reviewing their expert disclosures more carefully to make certain they are sufficient under the Virginia Supreme Court s decision in John Crane, Inc. v. Jones, 274 Va. 581, 650 S.E.2d 851 (2007), cert. denied 76 U.S.L.W (2008). Virginia Circuit Courts have increasingly been the site of John Crane hearings in which one of the litigants argues that the certain aspects of the expected testimony of the opponent s experts were not properly disclosed and should be excluded at trial. Defense attorneys seem to have particular enthusiasm for making John Crane exclusionary motions in an effort to exclude expert testimony which is necessary or important to the plaintiff s case. They sometimes present the decision to trial courts as though it is a watershed event and has dramatically changed the law and the standards governing expert disclosures. What is the real impact of the John Crane opinion? Fairly viewed, what does it mean, and what does it not mean? It is important to understand the decision fully in order to properly handle expert disclosures and to effectively respond to exclusionary motions before trial and at trial. In John Crane, the plaintiff, Garland F. Jones, Jr. was employed from 1963 to 1967 as a machinist at Newport News Shipbuilding & Dry Dock Company. In January 2005, he was diagnosed with malignant mesothelioma, a cancer in the lining of the lung caused by exposure to asbestos dust or fibers. Jones filed suit against John Crane, Inc. ( Crane ) and other companies, alleging Crane manufactured and/or sold asbestos-containing products to his employers, he was exposed to these products while building and repairing various marine vessels, and the products caused his cancer.

2 Page 2 of 7 Jones subsequently died and the personal representative of his estate (the Estate ) filed an amended motion for judgment adding a wrongful death count. During the course of a seven-day jury trial, the trial court excluded certain testimony of two of Crane s expert witnesses, Dr. Victor Roggli ( Roggli ) and Henry Buccigross ( Buccigross ). The Estate objected to any opinion testimony by Roggli regarding the amount of asbestos in the ambient air (generally circulating air) and its relationship to the cause of mesothelioma. The Estate also objected to testimony by Buccigross about tests he had conducted on asbestos-containing products made by other manufacturers. The Estate argued that these aspects of these experts testimony should be excluded because the opinions were not disclosed by Crane as required by Rule 4:1(b)(4)(A)(i) of the Rules of the Supreme Court of Virginia. The trial court excluded the challenged testimony. On appeal, the Supreme Court upheld the trial court s rulings. The John Crane decision does not mean that expert testimony which is not properly disclosed must always be excluded. The Supreme Court of Virginia reviewed the trial court s exclusionary rulings under an abuse-of-discretion standard and concluded that the trial court did not abuse its discretion under the circumstances of the case in excluding the challenged testimony. The application of this standard is not a change in the law the Virginia Supreme Court has for many years reviewed trial court rulings regarding the admission or exclusion of expert testimony under the abuse-of-discretion standard. 1 The Virginia Supreme Court s ultimate holding in John Crane was only that the trial court did not abuse its discretion in excluding the testimony under the circumstances involved. Those circumstances included: a) the subject matter of the testimony had not even been disclosed, b) the nondisclosing litigant had apparently not made any affirmative curative efforts before trial (e.g., no supplemental (even if tardy) curative disclosures); c) the issue was not raised and 1 See, e.g., Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995) (cited and applied in Crane, 274 Va. at 591, 650 S.E.2d at 856).

3 Page 3 of 7 presented to the court until trial when curative remedies other than exclusion (such as ordering further disclosures, further deposition opportunities, etc.) that the court might have employed were not available; d) the nondisclosing litigant had a bad track record in discovery since it had given false answers to some interrogatories. It should also be noted that even given the numerous circumstances favoring the exclusionary remedy in John Crane, it seems entirely possible that if the trial court had instead allowed the testimony, subject to certain measures to protect the plaintiff against unfair prejudice, the Virginia Supreme Court may have upheld that ruling as well. After all, the abuse-of-discretion standard grants a broad range of decision-making authority to trial courts. The John Crane holding does not announce new standards or new requirements governing the sufficiency of expert disclosures. Litigants have long been required to provide expert disclosures in conformity with the requirements the trial court and the Virginia Supreme Court applied in John Crane. The standard that was applied to the expert disclosures of Crane was the standard that has long been contained in Rule 4:1(b)(4)(A)(i) of the Rules of the Supreme Court of Virginia. In its decision, the Court quoted and applied the language of that provision of the Rule: A party may through interrogatories require any other party to identify each person whom the party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The Virginia Supreme Court reviewed the expert disclosures regarding Roggli and found: Nothing in Crane's disclosure reveals that Dr. Roggli might testify about asbestos in the ambient air. 2 The Roggli testimony that was excluded was testimony regarding opinions that were 2 Crane, 274 Va. at 592, 650 S.E.2d at 856 (emphasis added).

4 Page 4 of 7 not disclosed at all. Moreover, it is important to note that the violation regarding Roggli was not merely a failure to provide information about some particular aspect of the details regarding Roggli s expected testimony. Rather, the violation was a complete failure to disclose even the subject matter of Roggli s opinions (asbestos in the ambient air). If the disclosure requirements of the Rule mean anything, they must mean that a trial court has the authority in certain circumstances to exclude expert testimony about opinions that were completely undisclosed. Crane attempted to overturn the trial court s decision by arguing that the trial court erred in excluding the testimony since the plaintiff s counsel had eventually learned of and questioned Roggli about the opinions during his deposition. The Virginia Supreme Court rejected this reading of the Rule s requirements: [A] party is not relieved from its disclosure obligation under the Rule simply because the other party has some familiarity with the expert witness or the opportunity to depose the expert. Such a rule would impermissibly alter a party's burden to disclose and impose an affirmative burden on the non-disclosing party to ascertain the substance of the expert's testimony. 3 Litigants adopting a gotcha approach to exclusionary motions often rely upon the fact that eventual disclosures of the opinions during depositions was deemed insufficient to cure the earlier disclosure violations in John Crane. It is important to note, however, that the Virginia Supreme Court did not hold that untimely but curative disclosures of the full opinions during pretrial depositions could never make a difference to the trial court or the Supreme Court. The Court did not hold that a trial court would necessarily abuse its discretion if it admitted challenged opinion testimony that was initially not disclosed but had been disclosed and cross-examined during a deposition. Rather, the Court only held that in this particular case the trial court did not err in excluding the opinion. 3 Id.

5 Page 5 of 7 Moreover, the circumstances of the case had included untruthful discovery responses on behalf of Crane. 4 The Virginia Supreme Court also upheld the trial court s exclusion of the challenged testimony by Buccigross. Prior to trial, Crane disclosed that Buccigross would offer testimony on his research and/or his testing of various asbestos insulation products. 5 Although the disclosure referenced a report by Buccigross on his testing of other asbestos insulation products, the report was not attached to the disclosure and apparently was never provided. The trial court refused to allow Buccigross to testify about the tests he had conducted on certain other products because the Estate had not received Buccigross report relating to this subject. Once again, the violation involved was fairly egregious. An entire category of testimony (everything covered in the report) was undisclosed. Moreover, even if the failure to provide the report was inadvertent, the nondisclosing litigant clearly knew or should have known of the nondisclosure. Particularly in view of the false interrogatory answers the trial court found Crane had previously provided, the trial court may have been disinclined to trust that the failure to provide the report occurred despite every good faith effort to achieve full compliance with the discovery Rules. Crane argued that the Estate knew the substance of Buccigross testimony because the Estate s counsel had cross-examined Buccigross at trial about his reports going back to the 90s. 6 Crane also observed that the Estate had failed to depose Buccigross or to ask Crane for representative samples of 4 Crane, 274 Va. at 590, 650 S.E.2d at Crane, 274 Va. at , 650 S.E.2d at Presumably this meant that the Estate s counsel had cross-examined Buccigross about his opinions at previous trials, although the opinion is not entirely clear on this point. The opinion does later refer, however, to familiarity with such expert through prior litigation, 274 Va. at 593, 650 S.E.2d at 857, which supports the view that the cross-examination took place at previous trials.

6 Page 6 of 7 Buccigross testimony, either of which would have allowed the Estate to ascertain the actual substance of the testimony. The Virginia Supreme Court rejected the contention that either the ability to depose an expert or de facto knowledge of an expert s prior testimony, necessarily and automatically cures a deficient Rule 4:1(b)(4)(A)(i) written disclosure. Once again, however, it is important to note that the Virginia Supreme Court did not hold that a trial court could never conclude that such considerations supported allowing the insufficiently disclosed expert testimony. The Virginia Supreme Court did not hold that it would necessarily constitute an abuse of discretion for a trial court to admit challenged expert testimony because the opponent s counsel in fact had extensive previous familiarity with the expert s opinions and the grounds therefore. The Court only held that the trial court did not abuse its discretion in excluding the testimony under the circumstances presented. The teaching of the John Crane opinion appears to be that a litigant who completely fails to disclose an expert opinion or the substance of the expected expert testimony faces the risk of exclusion of the testimony, and no-harm-no-foul arguments will not necessarily save the expert testimony from exclusion. Virginia lawyers are wise to do all they can to avoid this risk. At the same time, it seems unlikely that opposing counsel can assume that insufficiently disclosed expert testimony will always be excluded at trial. Rather, rulings regarding the admission or exclusion of expert testimony will, as always depend upon the exercise of the trial court s discretion under the particular circumstances presented. It seems likely that exclusionary motions will be denied if the subject matter and the substance of the expert testimony has generally been disclosed fairly fully, and the alleged deficiency concerns some more detailed aspect of the expert testimony. Obviously, in such situations the trial court will need to decide how many layers of the onion must be peeled away in the expert disclosures. This

7 Page 7 of 7 author believes that if the important layers of the expert opinions have been disclosed, trial courts will be less likely to sustain a motion to exclude. Exclusion should also be far less likely, for example, if the initial insufficient expert disclosures are formally amended and supplemented prior to trial, an opportunity for supplemental deposition questioning is expressly offered, and the proponent s course of discovery has been generally forthcoming. Although even these corrective measures may not require the trial court to allow the expert testimony at trial, they seem likely to result in such a ruling in many cases. Another factor that is potentially important is whether the exclusionary motion is presented before trial or at trial. If counsel becomes aware before that opposing counsel deems his expert disclosures insufficient, counsel should certainly consider formally supplementing her previous disclosures, formally offering opposing counsel additional discovery opportunities (additional depositions, additional written discovery etc.), and taking the initiative to bring the issue on for hearing as far in advance of trial as possible (since the trial court will have greater flexibility prior to trial in fashioning remedies other than exclusion). Obviously, the best course to take will involve subtle strategic considerations, and counsel will have to decide whether being proactive will actually serve to make a bigger deal out of the issue and amount to borrowing trouble. On the other hand, litigators know that all too often sleeping dogs are unwilling to lie quiet, and an ounce of prevention is worth a pound of cure. Roger T. Creager is an attorney practicing with The Creager Law Firm, PLLC, 2800 N. Parham Road, Suite 205, Richmond, VA He has published articles frequently on Virginia litigation topics. He serves on the Board of Governors of the Virginia Trial Lawyers Association ( VTLA ), the Boyd- Graves Conference, the Litigation Section Council of the Virginia Bar Association, and the Virginia State Bar s Standing Committee on Legal Ethics. He was awarded the Courageous Advocate Award by the VTLA in He can be reached at (804) and rcreager@creagerlawfirm.com.