DISCOVERY FROM EXPERT WITNESSES 1

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1 DISCOVERY FROM EXPERT WITNESSES 1 Discovery from retained and even involved experts can be difficult and the process frustrating. Some basic understanding of what is discoverable and what is not from experts is critical. Cooperation and professionalism amongst attorneys can also make discovery from and of experts much more enjoyable and less onerous. STATUS OF WITNESS Some definition of terms will be helpful. First, the status of an expert witness must be ascertained and understood. It is both the subject matter and the involvement of the witness that will determine the status of the witness and if he or she is an expert under the rules. The status will then determine various items including whether discovery can be obtained from the witness, whether the witness is entitled to a fee above that of any other witnesses, whether the witness will be able to testify, and if so whether they will be able to testify about opinions held or formed, and within which areas she or he will be allowed to render those opinions. The Consulting Witness: A witness retained purely as a consulting expert -- whose purpose it is to advise counsel only generally will not be required to submit to discovery or disclose any opinions to the non-retaining counsel. This witness is part of the defense or plaintiff s team and their thoughts or opinions are not shared with opposing counsel or with the trier of fact. See, Fla. R. Civ. P (b)(5)(B) [Can only be required to share information in discovery under exceptional circumstances or under 1.360(b)] The Retained Witness: A witness hired to review a case, or materials in a case, for the purpose of expressing opinions to the finders of fact or the judge and who has no, or limited, independent knowledge of the case is generally an expert as contemplated by the expert witness discovery rules, specifically rules 1.280(a) (5) and They are hired, presumptively, for their expertise. They are supplied information by the party who hires them, consult with the hiring attorney, and if retained to testify, will generally render opinions favorable to the retaining party. Their background, basis for 1 Any cases or authorities cited in the outline should be confirmed, before utilizing, as to validity, or continued validity, of the citation and their application to the principle(s) for which they are cited. 1

2 their opinions, prior retentions by this and other entities and law firms, and other aspects will generally be subject to discovery. The Involved or Treating Expert: While an expert by training and experience, this type of expert is not hired as a consulting or retained expert. This witness status occurs because, for example, they are the treating doctor in a case who will be asked for opinions during discovery and trial. Their knowledge comes from having been involved in the case not from forensic retention. The Hybrid Expert 2 : This witness status is a cross between a treating or involved witness and a retained type of expert. It is become of recent interest and is the subject of evolving case law. An example would be a doctor to whom plaintiff counsel directs his/her clients for treatment, to whom other clients have been sent in the past, and with whom the plaintiff undertakes a course of treatment. WHAT IS AN EXPERT OR SKILLED WITNESS An expert or skilled witness is one qualified as an expert by knowledge, skill, experience, training, or education. Fla. Stat To be used as an expert in a court of law, their testimony must assist the trier of fact in understanding the evidence or in determining a fact at issue. Id. Another definition of an expert witness is found in Fla. R. Civ. P (a) where it defines an expert witness as: a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience or one possessed of special knowledge or skill about the subject upon which called to testify. 3 2 The term hybrid witness is not seen much in case law. See, Steinger, Iscoe & Greene, P.A. v. Geico General Insurance Company, 103 So.3d, 200, 204 (Fla. 4 th DCA 2012); Katzman v. Ranjana Corp., 90 So.3d 873, (Fla. 4 th DCA 2012); State Farm Mutual Automobile Insurance Company v. German, 12 So.3d 1286, 1287(Fla. 5 th DCA 2009) [Concurring opinion by Judge Torpy] While it was used in the initial opinion of Katzman v. Rediron Fabrication, Inc., 36 Fla. L. Weekly D1747 (Fla. 4 th DCA Aug. 10, 2011) it was later withdrawn and superseded by 76 So.3d 1060 (Fla. 4 th DCA 2011). 3 Certain areas of the law define experts specifically for that cause of action. For example, in medical malpractice cases an expert is defined under Fla. Stat, and must be referenced when determining if the expert will actually be qualified to render opinions. NOTE: At the time this outline is being drafted an amendment was before the 2013 legislature to alter further the definition of an expert for purposes of medical malpractice. 2

3 An auto mechanic with a 2nd grade education may be an expert in an auto engine explosion case wherein a civil engineer with a Ph.D may not be qualified to testify about the explosion issue. It is the specific qualifications, the experience, the specific subject matter involved and the complexity, or lack thereof, that determines if an individual is an expert and if he or she will be able to testify 4. The decision as to basic qualifications and whether an expert should be allowed to testify on a particular subject is within the discretion of the trial judge. 5 WHY SO IMPORTANT Experts hold an important place in litigation. By human nature and training, individuals are taught to consult experts for their opinions. Rightly or wrongly, generally the expert s opinion will carry a great deal of weight with the finders of fact. We are taught to consult a doctor, lawyer, architect, engineer, dentist, CPA or other professional when we need answers to things that appear specialized and/or complicated. Jurors, being human, tend to do the same. Even the believability jury instruction on experts is different. The jury is told that experts can render opinions on technical subjects. FSJI 601.2(b). The only admonition they are given is that they may accept it, reject it or give it the weight [they] think it deserves, considering the knowledge, skill, experience, training or education of the witness, the reasons given by the witness for the opinions expressed, and all the other evidence in the case. Id. 6 It is to these attributes that one must look in attempting to elevate or impeach an expert witness while testifying. To accomplish this pretrial discovery becomes the key. DISCOVERY 4 Certain areas of the law have specific statutory qualifications that must be met to allow an expert to render an opinion either in testimony or even by affidavit. The Florida Medical Malpractice Act, for example, is one of the areas that provides its own definition of experts. See, In 2013, the legislature modified these provisions further, however, as of the drafting of this outline there were still before the Governor for his signature. 5 See discussion of Daubert below. 6 The jury instruction in criminal is somewhat different. It reads: Expert witnesses are like other witnesses, with one exception the law permits an expert to give his/her opinion. However, an expert s opinion is reliable only when given on a subject about which you believe him/her to be an expert. Like other witnesses, you may believe or disbelieve all or any part of an expert s testimony. Florida Standard Jury Instructions in Criminal Cases 3.9(a). 3

4 Interrogatories and depositions are available in conducting discovery of experts and their opinions. Interrogatories must be directed to the party even though they ask for information from an expert. Likewise requests for production are directed to the party and not the expert. Interrogatories: Initial efforts of identifying experts who will be used at trial are through interrogatories. Fla. R. Civ. P (b)(5). The scope of the information that is to be provided regarding the expert s opinions is contained within the rule. The approved Supreme Court form interrogatories, contained in Appendix 1 of the civil rules, specifically require disclosure of information on the retained experts. The party must disclose the identity of the expert(s), the subject matter about which testimony will be given, the substance of the facts and opinions to which the expert will testify and a summary of the grounds for each opinion. Additional types of information discoverable include the scope of employment, the expert s litigation experience, others cases in which the expert has been involved, and the approximate percentage of work generated therefrom. Depositions: Experts may be deposed as any other witness. However, it must be remembered when an expert s deposition is taken it may be used at trial without regard to the factors under Fla. R. Civ. P (a) (3) (F). See 1.390(b) also. Planning and preparation are the keys to conducting a successful discovery deposition with an expert. Unlike a lay witness, the expert is probably not a novice when it comes to sitting for a deposition. Nor will they be shaken by cross examination. The attorney must develop a plan of attack when deposing an expert. One must know: 1- What is it that the expert is expected to say? (Opinions) 2- How will that testimony affect your case if at all? 3- Is the expert s opinion founded on a solid foundation? 4

5 4- Is the expert basing her/his opinion on the admissible facts in this case? 5- Is the individual truly an expert in the area, and on the topic about which he/she is being offered? 6- What is the relationship of the expert to the attorney? The attorney s law firm? The client? Other experts in the case? 7- Where are the weaknesses in the opinion, analysis, or underlying facts? 8- Are his opinions and conclusions subject to a Daubert Challenge? (See below under Daubert) a- based upon sufficient facts or data b- the product of reliable principles and methods c- have the principles and methods been properly applied to the facts in this case The methods and techniques for taking the deposition of an expert will vary from attorney to attorney and will depend, in part, on the style and experience of the attorney and the amount of preparation that has been devoted to the case. The more expert depositions that are taken the better the attorney will become in planning and taking the depositions. Your retained expert and independent research will be useful to you in preparing to depose the expert witnesses. Information from other attorneys, the courthouse and clerk s office, exchanges and professional groups can also be a source of helpful facts, prior depositions and trial testimony and information. It is helpful to have a starting outline upon which one can build and modify to your present case. PRACTICE TIP #1: Disclosure of who the expert witnesses will be and what they will say and when they will be ready with their opinions is a constant source of contention. Consider asking the Court to create a discovery and disclosure schedule. The schedule would set forth the dates for disclosure of the experts, the dates for the completion of discovery and a notation that opinions not expressed in the discovery depositions or reports will not be allowed at trial. Better yet, meet with opposing counsel and create a mutually agreeable order that can be presented to the Court. Records and materials: 5

6 While a request to produce to an expert is not appropriate under the rules as they are not a party, a records pick up with deposition or other discovery deposition may well be appropriate. Certain items sought may not, however, be discoverable. These could include certain types of confidential communications, or medical or psychiatric records, privileged records or records not relied upon by the expert in formulating his or her opinions. Expert witnesses, under Florida law as opposed to federal procedures, are generally only required to produce documents at depositions upon which they have relied to formulate their opinions. See, Fields v. Canady, 456 So.2d 1208 (Fla. 5th DCA 1984) It is certainly desirable to have had an opportunity to have reviewed all the records the expert has relied upon prior to your conducting a discovery deposition. Knowing what he or she had available and when, and sometimes more importantly, what they did not have available at the time they formed their opinons may well control your approach to your questioning. Expert Witness Fees: An expert or skilled witness is also allowed a witness fee in such reasonable amount as the court may determine. The Court also sets the timeframe within which payment may be made. Fla. R. Civ. P (c) Any hearing on the amount of the fees will require notice to not only all the parties but also the deponent (expert). PRACTIC TIP #2: Disputes arise when a retained expert wants what one attorney believe is an exorbitant fee and wants it prepaid. The rule specifically provides that the trial judge is authorized to resolve this issue upon motion and notice. It must be remembered that a party may hire any expert they wish and pay them any amount they choose to pay. However, the opposing party is only required to pay a reasonable fee for services. Most attorneys can work out any disagreement without going to the court; however, it should be remembered that the court is available to specifically address these matters under Fla. R. Civ. P (c) but can only do so upon motion and hearing. PRACTICE TIP #3: Prior to taking the deposition of the opposing expert, one will want to have (1) obtained the experts report, if one has been prepared; (2) propounded interrogatories under Fla. R. Civ. P (b)(4); 6

7 (3) propounded Boecher type interrogatories [Allstate v. Boecher, 733 So.2d 993 (Fla. 4th DCA 1999), Allstate v. Pinder, 746 So.2d 1255 (Fla. 5th DCA 1999), Springer v. West, 746 So.2nd 1068 (Fla. 5th DCA 2000)]; (4) consulted with one s own expert about areas of examination of the deponent; and (5) possibly consulted with other counsel familiar with this expert. Professionalism Pointer: Experts can be the burr that creates problems among attorneys. Most counsel can work out reasonable accommodations with an expert if the attorney retaining the expert will cooperate with the attorney trying to take the deposition to reach some mutual agreements. While the retaining counsel can agree to pay an expert any amount the retaining counsel deems appropriate, generally the Court is only going to require opposing counsel to pay a reasonable fee, within a reasonable time frame. Rarely should a court have to get involved, as this should be something agreed to by counsel SIGNIFICANT LEGISLATIVE CHANGES FRYE BECOMES DAUBERT: For years an expert s abilities to testify as to theories and opinions have been challenged by a Frye 7 hearing in Florida. During that same time federal courts, however, have utilized the Daubert 8 standard for more than 20 years. Effective July 1, 2013, Florida will be applying the Daubert standard to the admissibility of expert testimony. State courts will have to look to the federal law for guidance when ruling on these issues as Frye will no longer be controlling precedent. An in depth discussion on how to apply Daubert and conduct a hearing is a topic for a seminar by itself. Attached hereto is a primer prepared by Retired Circuit Judge Ralph Artiglere 9 and used by Judge Artiglere and the undersigned during a recent statewide judicial seminar. (Attachment) Expert testimony is controlled by Fla. Stat The Florida legislature has amended this statute significantly in A side by side 7 Frye v. United States, 293 F (D.C. Cir. 1923) 8 Daubert v..merrill Dow Pharmaceuticals, Inc.,, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993) _ 9 Senior Judge Artiglere has been kind enough to authorize the dissemination of this outline to the Brown Bag attendees. 7

8 reading of the two statutes demonstrates the draconian, or at least significant, differences: PRIOR TO JULY 1, 2013: Fla. Stat Testimony by experts. If scientific, technical, or specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial. ON OR AFTER JULY 1, 2013: Fla, Stat Testimony of experts: If scientific, technical, or specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if; (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case; however, the opinion is admissible only if it can be applied to evidence at trial. (Underlying indicates new language; bold is added for emphasis) It appears that the legislative change has both added additional factors to be evaluated by the court and has all but eliminated the pure opinion exception under Frye and Marsh v. Valyou, 977 So.2 543,547 (Fla. 2007). Counsel will have to look to federal and other state s case law which have followed Daubert for the last few years for precedent. CHANGES TO BASIS OF OPINION TESTIMONY: A second change by the legislature is the modification to Fla. Stat The change makes clear that inadmissible facts or data relied upon by an expert are not admissible and may not be disclosed to a jury unless the Court makes specific findings as to the probative value of the information. 8

9 PRIOR TO JULY 1, 2013: Fla. Stat Basis of opinion testimony by experts: The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made know to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts and data need not be admissible in evidence. ON OR AFTER JULY 1, 2013: Fla. Stat Basis of opinion testimony by experts: The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made know to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts and data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert s opinion substantially outweighs their prejudicial effect. (Underlying indicates new language) Judge John Marshall Kest 10 Revised June Copyright 10 Comments, recommendations, "practice tips," and "professionalism pointers" are solely those of Judge John Kest. When appearing in front of a specific judge, each attorney should check with that judge for the individual procedures, policies and requirements of that judicial division or judge. 11 In August of 2010, a Brown Bag Outline was prepared discussing taking deposition generally. A section of what is contained herein was incorporated in that outline. The 2010 outline is available from Judge Kest s JA, Diane. 9