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I. SCOPE OF DISCUSSION.
Under the current rules, the starting point concerning discovery about experts is Rule 195 -- appropriately entitled "Discovery Regarding Testifying Expert Witnesses." This paper will review the expert witness rules starting with Rule 195 and also provide additional general information concerning expert witnesses. This is not a paper that discusses Robinson/Havner and its progeny. Finally, at the back are some forms that may help you in your everyday practice.
It is important to note there are basically four different types of experts:
- Retained testifying experts - a testifying expert is defined as an expert who may be called to testify as an expert witness at trial. Tex.R.Civ.P. 192.70(c)
- Non-retained testifying experts - this would be an expert who is going to testify at trial, but who has not been retained by, employed by, or otherwise subject to the control of the party calling that expert witness (i.e. an ambulance driver)
- Discoverable consulting experts - a consulting expert is an expert who has been consulted, retained or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert. Tex.R.Civ.P. 192.7 They become discoverable if their work is reviewed by a testifying expert or if they become knowledgeable about the facts of the case.
- Non-discoverable consulting experts - a non-discoverable consulting expert is a "consulting expert" as defined above, but whose work product, reports or opinions are not relied upon by a testifying expert.
Discovery from these experts differs, depending upon their classification.
II. DISCOVERY REGARDING EXPERT WITNESSES--THE TEXAS RULES OF CIVIL PROCEDURE.
A. Testifying Expert Witnesses -- Rule 195. The basic rule is that the only three ways to discover information about testifying expert witnesses is through a Request for Disclosure under Rule 194, through depositions and through expert reports. Rule 195.1 states the following:
A party may request another party to designate and disclose information concerning testifying expert witnesses only through a request for disclosure under Rule 194 and through depositions and reports as permitted by this rule.
B. Rule 194 Governs Requests for Disclosure. The particular matters pertaining to expert witnesses are found under Rule 194.2(f) which allows a party to request disclosure of the following for any testifying expert witness:
- The expert's name, address, and telephone number;
- The subject matter on which the expert will testify;
- The general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;
- If the expert is retained by, employed by, or otherwise subject to the control of the responding party:
- All documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and
- The expert's current resume and bibliography.
C. The Scope of Expert Discovery. Although the scope of Rule 194.2(f) concerning testifying experts allows for discovery of this information only through requests for disclosure, Rule 192.3 further defines the information that can be obtained through depositions and expert reports. Rule 192.3 entitled "Scope of Discovery" allows for the following to be discovered from testifying and not purely consulting experts:
A party may discover the following information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert:
- The expert's name, address, and telephone number;
- The subject matter on which a testifying expert will testify;
- The facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;
- The expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them;
- Any bias of the witness;
- All documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert's testimony;
- The expert's current resume and bibliography.
See Tex.R.Civ.P. 192.3(e).
D. Non-Retained Testifying Experts. These experts, oftentimes treating physicians, police officers, or other experts who may be involved in the specific facts of the case, are treated differently than retained experts. There are five ways to discover information from non-retained testifying experts:
- Request for Disclosure through Rule 194;
- Expert reports;
- Deposition by written questions;
Comment 2 to Rule 195 provides the greater latitude for discovery versus retained testifying experts.
E. Discoverable Consulting Experts. To obtain information about discoverable consulting experts, a party may use requests for disclosures, interrogatories, requests for admissions, or any other type of discovery.
F. Conflict Between Testifying Experts and Discoverable Consulting Experts. For testifying experts, discovery is limited to only the requests for disclosure, oral depositions, and expert reports. Tex.R.Civ.P.195.1. However, with discoverable consulting experts, (i.e., experts whose mental impressions or opinions have been reviewed by a testifying expert) there is no limitation expressed in the rules and traditional means of discovery should be available to you.
G. Interrogatories and Testifying Experts. It is clear that interrogatories may not be used to inquire about testifying experts in cases filed after January 1, 1999. See Rule 195.1 and Rule 195.4. However, you can use interrogatories to inquire about consulting experts.
A suggested interrogatory on consulting experts would be as follows:
For any consulting experts whose mental impressions or opinions have been reviewed by a testifying expert, please state or provide all of the discovery authorized by Rule 192.3(e). A full and complete answer should include a list of cases in which they testified and witness fees paid within the last five (5) years.
H. Time-line for "designating experts". Rule 195.2 sets the schedule for designating experts. Generally, unless otherwise ordered by the court, a party must designate experts by the later of the following dates:
- 30 days after the request for disclosure is served under Rule 194.2(f); or
- With regard to all experts testifying for a party seeking affirmative relief, ninety (90) days before the end of the discovery period;
- With regard to all other experts, sixty (60) days before the end of the discovery period.
If no requests for disclosure concerning experts has been served on a party, the party is not subject to the time tables of Rule 195.2. Because the "designation" of testifying experts means response to Rule 194.2(f), it is important that you send out this request for disclosure in every case.
Likewise, the scheduling of experts for deposition is based upon the time of "designation". Thus, the schedule does not apply in the absence of disclosure requests.
Practice Tip: Regardless of the level of case you have, it is advisable to enter a Rule 11 Agreement with all parties to agree on the exact dates for designation. This eliminates the calendar gymnastics that can be confusing. This also assumes the court you are in and allows the agreement to be effective.
I. Scheduling depositions.
1. A party seeking affirmative relief must make the expert retained by, employed by, or otherwise under the control of the party available for deposition as follows:
a. If no expert report is produced when the expert is designated, then the party must make the expert available for deposition reasonably promptly after the expert is designated. However, if you cannot reasonably conclude the deposition within fifteen (15) days before the deadline for designating other experts, that deadline must be extended for other experts testifying on the same subject.
b. On the other hand, if an expert report is furnished when the expert is designated, the party need not make the expert available for deposition until reasonably promptly after all other experts have been designated.
2. A party not seeking affirmative relief must make an expert retained by, employed by, or otherwise under the control of the party, available for deposition reasonably promptly after the expert is designated and the experts testifying on the same subject for the party seeking affirmative relief have been deposed.
3. Non-retained testifying experts are treated differently. A party is not required to present a non-retained testifying expert for deposition, and a deposition of a non-retained testifying expert should be taken according to the same rules for deposing other non-parties.
J. Reports. The expert's report should include all factual observations, tests, supporting data, calculations, photographs, and opinions of the expert. Tex.R.Civ.P. 195.5. The report should also state the expert's opinions and the underlying basis for them.
1. Court-Ordered Reports. Rule 195.5 gives the court the authority to order an expert to reduce to tangible form the expert's discoverable factual observations, tests, supporting data or calculations, photographs or opinions.
2. Effect of Report. When a party seeking affirmative relief produces an expert report, this report triggers the designation of the other party's expert. Tex.R.Civ.P. 195.3(b). Comment 3 to Rule 195 states, "A party who does not wish to incur the expense of a report may simply tender the expert for deposition, but a party who wishes an expert to have the benefit of an opposing party's expert's opinions before being deposed may trigger designation by providing a report. Thus, the rules envisioned that the opposing party must set forth their expert's opinions before depositions are taken.
K. Amendment and Supplementation. Rule 193.5 is the general rule regarding amending or supplementing responses to written discovery. This rule also governs the amendment and supplementation of written discovery regarding a testifying expert. It should also be noted that you must amend or supplement your expert witnesses deposition testimony or written report only in regard to the expert's mental impressions or opinions, and the basis for them. Tex.R.Civ.P. 195.6.
L. Cost of Expert Witness. Rule 195.7 basically states that you must pay to present your expert witness for deposition, including the preparation giving, reviewing, and correcting of the deposition.
III. SELECTING AN EXPERT.
The reason for employing an expert witness is really three-fold. First, the expert should be able to assist you in understanding your case. Second, the expert should be able to communicate to and educate the jury about the issues. Third, the expert should be able to compel the jury to decide for your side of the case. As such, your selection of an expert is critical and you should consider the following:
A. Professional background, including authoritative reputation.
- Certificates and licenses held;
- Books and Articles; and
- Obtain publications (title, year and name of publication);
B. Point of View.
- Objectivity - don't have them stretch; and
- Fairness - no exaggerating.
C. Personal Characteristics.
- Ability to communicate. Pay attention to how the expert speaks, his mannerisms, gestures, and overall attitude toward the case. Experts must be likable and objective. They must have the ability to deliver and explain opinions persuasively;
- Previous expert opinions rendered; and
Prior writings of the expert, deposition transcripts, trial testimony.
IV. PREPARATION FOR YOUR EXPERT'S DEPOSITION.
A. Meeting the Expert. It is extremely important to meet with the expert well in advance of the deposition. Cross-examine the expert to make sure the expert is prepared to go forward with the deposition and has not forgotten essential facts. Review the expert's file as well as any authoritative text the expert recommends. You should review the jury questions and instructions that will be asked at trial with the expert, including all definitions. Have the expert summarize his opinions in the case, list the basis for each opinion, supporting information for each opinion, review contradictory information, discuss limits on the opinions, and review the opposition's likely position relative to each opinion. Additionally, do the necessary work to further strengthen the opinions of the expert, such as research for supporting documentation.
B. All Opinions. When you are meeting with the expert witness, emphasize the importance of hearing all of the opinions during this meeting, not just the ones that support your case. Have the expert point out both strengths and weaknesses. It is not unusual for the expert to miss an important fact that turns his perceived weakness into a strength. Take any literature or articles that support your position and verify with your expert that they are authoritative.
C. Robinson/Havner. From a layperson's standpoint, you should discuss the admissibility requirements of Robinson, Broders, Kumho Tire, and Havner. Emphasize the need for a strong basis for each opinion and the reliability of the opinions given by the expert.
- The extent to which the theory has been or can be tested;
- The extent to which the technique relies upon the subjective interpretation of the expert;
- Whether the theory has been subjected to peer review and/or publication;
- The technique's potential rate of error;
- Whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and
- The non-judicial uses which have been made of the theory or technique.
D. Multiple Experts. Because experts can conflict with each other, it is important to have your experts on the same page as much as possible. If possible, have your first testifying expert's deposition transcribed and sent to your second testifying expert prior to his/her deposition. Disagreements between the two experts will be exploited and magnified in front of a jury and avoiding a conflict can factor into a successful result.
V. CROSS EXAMINATION.
A. Preparation. In preparing for the opposing party's expert testimony, it is helpful to consult with your own client and your own experts to determine the best way to prepare for and cross-examine the witness. Review the opposing expert's report and look for any "holes" that are inconsistent with the facts or issues in your case. Have your experts review their report and, if possible, prepare cross-examination questions. In complex cases, it may be necessary for your expert to attend the opposing expert's deposition.
B. Background. Do as much research on the expert's background as possible before the deposition. Then, during the deposition, the expert should be pinned down on his or her background, education, testifying history, the specific work done on the case, his/her opinions, and the basis for each of those opinions. Also, it is helpful to determine whether the expert shares any common ideas or opinions with your expert. Further, if your expert is well known or known in the community, it would be helpful to have the opposing expert admit to the outstanding reputation of your expert.
C. Challenge the Expert. If the opposing expert takes certain facts as true and other facts as not true, determine the basis for his/her position. Challenge the witness with the other facts by using assumption questions and determine if the witness' opinion will change. Determine if the expert is laboring under a mistaken assumption of fact, and then pin the expert down on whether, if this particular factual assumption is erroneous, his opinion would change. To determine if the expert is working from an erroneous factual basis, you must determine:
- What materials were reviewed;
- The expert's knowledge of the facts;
- Whether the expert's opinion is factually misplaced;
- Whether independent research was done;
- Whether examined the plaintiff/scene/product; and
- That he/she does not know what your witnesses will say regarding the facts appearing in the medical records.
D. Help Make Your Case. Look to steal standard of care testimony, affirm your expert's testimony, or answer jury questions your way, especially from the expert who is intellectually honest. Oftentimes, an inexperienced testifier will give far more than your opponent would have wanted.
E. Discredit the Expert's Testimony. Look in the usual areas of bias or prejudice and mine for an unusual gem that will significantly damage the expert's opinions or credibility. In order to do so, you must determine:
- The experts Interest or bias;
- How much are they paid to testify;
- How many times they have testified for this party or industry;
- Money - what portion of total income is derived from testifying: Do they charge more for deposition and trial time than for case review time (show a profit motive for agreeing with opposing counsel's side of the case);
- Whether they were coached or instructed how to respond to this cross-examination by opposing counsel;
- Whether the expert and the defendant are members of any of the same local professional groups;
- Whether the expert has the same insurance carrier as the defendant;
- Whether they have never testified for a plaintiff or defendant; and
- Poor qualifications:
- None of the expert's articles involve this procedure;
- Has not been in the clinic for "x" number of years; and
- Never practiced medicine in the town where the injury occurred.
F. Prior Inconsistent Statements. There are a number of ways to obtain previous testimony or prior depositions on witnesses who are used more than a few times. Obtain as much testimony as you can to review prior to the deposition or trial. Check with:
- Other attorneys;
- Blue Sheet or Trial Reporter;
- Deposition banks;
- Ask the expert witness; and
- Ask the opposing lawyer.
G. Discovery Deposition v. Trial Deposition.
- Discovery Deposition. Determine prior to the deposition whether it is going to be a trial deposition or a discovery deposition. If it is a discovery deposition, you can be less organized (maybe even on purpose) and delve into each issue of the case laboriously, if necessary. One item that must be planned prior to a discovery deposition is whether or not to disclose your "secret" information on a particular item. If there is time for designation of additional witnesses, it may be prudent not to disclose this "secret" information. On the other hand, if you are attempting to settle the case and the time for designating experts has passed, it may be helpful to disclose such information to show the strength of your case in anticipation of a better settlement.
- Trial Deposition. A trial deposition, on the other hand, is the real thing in real time. Just as in cross-examination at trial, you should keep it short and start off with very strong points. You almost must use the "secret" information, unless this information can be pulled out of another witness who will testify live at trial. However, you should lay the foundation if the witness has made an incorrect assumption of facts. Have a list of short, understandable, pertinent leading questions and go through each of them one by one. If the expert is nonresponsive, object then ask the question again and again until you get the question followed by a responsive answer. The nonresponsive answers can be edited out prior to trial. After the initial cross-examination in a trial deposition, you can still do additional investigation by way of a discovery deposition.
- Mix-Up the Deposition. This tip works for all experience levels of testifiers, but it can throw an experienced testifier out of the general routine: At the start of a deposition, immediately seize control. Take all of the preliminary questions that you typically ask at the beginning and ask them at the end. Don't be afraid to jump around from issue to issue because the deposition can always be spliced together.
VI. WHERE TO FIND EXPERT WITNESSES.
A. Sources for Expert Witnesses:
- The party's subsequent treating physicians;
- Referrals from those physicians;
- Referral services;
- Text book and journal authors on specific subjects;
- Expert associated with a medical school or university;
- Blue Sheets or other trial reporters;
- Telephone book;
- Industry literature that is often not widely publicized, but heavily used in particular industries;
- Other attorneys -- do not be afraid to ask for assistance from a colleague;
- Discussion group Internet sites or the Internet generally; that can also provide valuable suggestions to obtaining experts;
- Judges and court reporters.
B. Practice Tip: Look for backup experts in the event your expert is successfully struck under a Robinson/Havner challenge. Also, consider adding a backup date for designating experts to replace those experts the court may strike.
VII. SUBPOENA DUCES TECUM.
Here are the items that you should consider requesting for every deposition.
- The expert's curriculum vitae or resume.
- The entire file, however described or maintained, of the expert in connection with this lawsuit.
- All correspondence (to or from the expert), reports, telephone memorandums, preliminary or draft reports, letters, notes, margin notations, or the like with regard to any involvement of the expert in the subject made the basis of the lawsuit, preliminary or otherwise and whenever produced or created.
- Verbatim copies of all materials reviewed, relied upon, considered, or rejected by the expert in reaching opinions and conclusion in this suit.
- Copies of any learned treatises, textbooks, or other reference materials which the expert reviewed or relied on, in whole or in part in forming opinions in this case (especially that the expert intends to assert as authoritative in this case).
- Copies of all of the petitions of all lawsuits against the expert (if petitions are onerous to provide, copies of the names of the parties, the names, addresses, and telephone numbers of the attorneys involved, the cause numbers, and a short statement describing the outcome of each suit will be acceptable).
- Copies of any depositions, reports, or the like provided by the expert on any case during the past five (5) years (if copies are onerous to provide, then please provide information sufficient to identify the custodian of said materials).
- Copies of all advertisements, offerings, descriptive brochures, price lists and the like, concerning the expert evaluation and testimony services of the expert.
- Copies of all invoices, bills, checks, statements or documents evidencing your charges, retainers, or fees in this matter.
All articles authored by the expert on the subject matter in question.
VIII. EXPERTS TO AVOID.
A. The Expert Who Goes Too Far. The expert should be willing to concede some obvious points and not overstate his opinions. While it is important for the expert to stay strong on his opinions, it is equally important that the expert maintain credibility. Have the expert stick with the facts and not exaggerate.
B. Super Expert. Do not choose an expert who will stretch their personal expertise. One expert may not be able to cover all of the bases. The expert should understand he is a piece of the puzzle, not the whole box top.
C. The Expert With Credibility Problems. Look for obvious problems such as over-used experts or personal acquaintances. Check on previous deposition testimony, if available.
D. Overly Expensive Experts. Unless the expert is a world renowned or nationally known in a specific area, really expensive fees can be offensive to jurors. Explain this to the expert and try to negotiate on the hourly rate.
IX. MATERIALS TO INCLUDE.
Send your expert all of the medical records, depositions, and other pertinent documents and materials, including the ones that do not help your case. If you fail to include the damaging information, it will destroy not only the expert's credibility, but your credibility. It is permissible to instruct the expert to skim through depositions that may not be relevant to the issues the witness will be discussing. However, never forget that everything that you send to the expert, including your letters, is discoverable by your opponent.
X. TRIAL PREPARATION AND TESTIMONY.
A. Talk with your expert witness about his/her willingness and availability to testify live at trial. Be sure to tell your expert that it is extremely important to prepare again (after his/her deposition) for trial because he/she will not have a chance to read, sign, or change his testimony after trial. Spend the time necessary on the eve of trial with the expert to discuss any new facts or issues that have arisen since his deposition.
B. During the preparation process, be sure to review all of the expert's handwritten notes to make sure they are consistent with the actual facts and issues of the case. With medical records and medical doctors, have the medical doctors review the handwritten notes in the medical chart to obtain their interpretation of what was written.
C. Ensure that you have obtained and reviewed all articles authored by the expert on the subject matter in question.
XI. MEETING WITH HEALTHCARE PROVIDERS.
A. There is one controversial area for defense lawyers: whether or not they can meet with the plaintiff's healthcare provider without the plaintiff's permission or presence. In Hogue v. Kroger Store No. 107, 875 S.W. 2d, 477 (Tex. App.--Houston [1st Dist.] 1994, writ denied), the court held that the defendant's ex parte meeting with the plaintiff's treating physician was permissible because the plaintiff had placed his healthcare in controversy.
B. However, subsequent to the Hogue decision, a Texas federal court found to the contrary. See Perkins v. U.S., 877 F.Supp. 330 (E.D. Tex. 1995). In Perkins, the federal court questioned the advisability of allowing the defendant to meet with the plaintiff's treating physicians and opined that to allow such a meeting would "extend unwitting carte blanche to defense lawyers, deciding themselves what is relevant and what is not." Id. at 332-333.
At the Houston medical negligence law firm of Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz, our team of experienced litigators have achieved successful results on behalf of people who have been injured by the negligent or intentional wrongdoing of others. Our experienced Texas lawyers handle medical malpractice claims, serious auto accidents, truck crashes, workplace injuries, oil and gas-related injuries and other catastrophic injury or wrongful death cases.
We are happy to work with referring attorneys to work toward securing positive outcomes for your clients.