The Current Status of Expert Discovery in Massachusetts

(By Frank J. Riccio, Esq.)

Expert discovery in the Massachusetts state courts is limited. As a result, the parties, at least in state court, have limited information as to what an adverse expert will testify to. Further, the parties in general, many times, lack the prior testimony needed to impeach the expert witness. Thus, there is no protection against misinformation being promulgated by experts. Since rebuttal testimony is almost non-existent in Massachusetts state court civil trials, false and misleading expert testimony, can and probably does, stand unchallenged. This leads to an unjust result. The Federal Rules of Evidence, which are more expansive, and have strict criteria for the discovery of expert testimony, affords protections that are lacking in Massachusetts state courts.

Mass. R. Civ. P. 26(b)(4) and the case law interpreting it, controls expert discovery in Massachusetts state courts.

Pursuant to Mass. R. Civ. P. 26(b)(4)(A)(i) , witness's answers to interrogatories are restricted to four subjects:

•  the identity of each expert witness expected to be called at trial;

•  the subject matter on which the expert is expected to testify;

•  the substance of the facts and opinions to which the expert is expected to testify; and

•  a summary of the grounds for each opinion expected to be offered by the expert.

As a result, unlike in Federal Court, and in many other State courts, depositions of experts, especially in medical negligence cases, tend to be infrequent.

Unless there is an agreement amongst the parties, expert depositions are generally not allowed under the Massachusetts Rules of Civil Procedure, except upon Motion. Mass. R. Civ. P. 26(b)(4)(A)(ii).

Expert discovery is typically limited to supplemental answers to a party's expert interrogatories. This occurs at, or shortly after, the final pre-trial conference. Most supplemental answers to interrogatories tend to be broad and generic.

Supplemental answers to interrogatories, drafted and finalized by the attorney, and signed by the defendant, make it virtually impossible for a party to impeach an adverse expert, with the interrogatory answers. Unless the expert is published in peer-reviewed journals or has given prior testimony, impeachment with a prior inconsistent statement is rare, at time of trial.

The exception, to the lack of impeachment material, occurs in medical negligence trials. Since the plaintiff's expert, who has submitted a report, letter or affidavit, for the tribunal, may be the testifying expert at trial, that expert's submission often provides ammunition for the defendant's attorney to use to cross-examine the plaintiff's expert. Since the defendant provides no expert testimony at the tribunal, there is no signed defense expert report, then, or ever.

The Plaintiff's tribunal submissions are frequently used, at trial, to cross-examine the plaintiff's expert. These documents can be effective in cross-examination of the plaintiff's expert, because most expert submissions are generated, pre-suit, and are usually based upon the available medical records and radiographs, and without the benefit of party and witness deposition testimony or discovery responses, such as answers to interrogatories.

There are many occasions, when the plaintiff's expert must modify or expand on his/her prior testimony, after general discovery has been completed. The attempt is made to use the report at trial as a prior inconsistent statement. This turns out to be misleading and unfair to the plaintiff's expert and ultimately the Plaintiff's case.

As a practice pointer, one way that I handle this potential “problem” is to first phrase my opinion questions to the expert at trial, during direct examination, based solely upon his/her review of the medical records/radiographs. Later during direct examination, I ask the expert if he/she has reviewed additional discovery documents, including depositions. I then ask the expert whether his/her review of discovery documents changed or modified his/her opinion. The questions (in abbreviated form) would go something like this:

•  Doctor, based upon your review of the following medical records, (list them) x-rays, CT scans, MRIs, and MRA's, and based upon your training, education, and experience as a physician (specialty), do you have an opinion, to a reasonable degree of medical certainty, as to whether or not the defendant's care and treatment of the plaintiff at (hospital) is below the standard of care for the average qualified physician, given the advances in the profession, for (date)?

•  Based upon your review of the medical records of the plaintiff and based upon your training, education and experience as a physician (specialty), do you have an opinion, to a reasonable degree of medical certainty, as to whether or not the defendant's failure to comport with the standard of care caused injury to the plaintiff?

Then, later, I ask:

You were also provided with depositions, and answers to interrogatories to review (list what was provided).

•  Was there any information in those depositions or other discovery responses that would cause you to modify or change the opinion that you set forth?

•  If so, please explain what information you read in the depositions and other documents that would cause you to change and/or modify your opinion.

Earlier in my trial career, and prior to my phrasing my questions on direct in this manner, defense counsel, would generally use the tribunal submission for impeachment. After changing my questioning to this form, rarely, does defense counsel use the tribunal submission for impeachment.

Federal expert discovery rules are much more expansive. Parties may depose experts who have been designated as trial experts under Federal Rules of Civil Procedure 26(b)(4)(A), but only after expert disclosure under Federal Rules of Civil Procedure 26(a)(2)(B), has been made.

The disclosure requirement is rigorous, requiring a signed expert report and a list of prior cases, which the expert has testified, as well as his/her fee requirements. Federal Rules of Civil Procedure 26(a)(2)(b).

Opinion and supporting facts, not included in disclosure, may be excluded at trial.

Rule 26(a)(2)(B) requires disclosure not only of raw data that the expert relied, but also that data that he considered.

There are multiple reasons for exchanging disclosure.

•  Preparation of the expert disclosures compels parties to focus on the issues and the evidence supporting or refuting their positions. Moreover, the cost and burden of preparing disclosures forces parties to consider with care whether to designate a particular person as an expert witness and may discourage or limit the use of excessive numbers of experts.

•  Exchange of the expert disclosures, as previously noted, materially assists the court and parties in identifying and narrowing issues.

•  Exchange of the disclosures may lead the parties to dispense with taking the opposing experts' depositions. Some attorneys believe that depositions tend to educate the expert more than the attorney when disclosures have been made as required by the rule.

•  The disclosures will inform the court's consideration of limitations and restrictions of expert evidence.

•  The disclosures will compel the proponent of an expert to be prepared for trial. Because the proponent must disclose all opinions to be expressed and their bases, surprise at trial will be eliminated, the opponent's trial preparation will be improved, and cross-examination will be more effective and efficient.

•  The disclosures will aid in identifying evidentiary issues early so that they can be resolved in advance of trial.

•  The disclosures may encourage early settlement.

See Reference Manual on Scientific Evidence 2 nd 2004 at 159.

In contrast, the Massachusetts state courts, are much more restrictive as to expert discovery.

Thus, without an agreement to take expert deposition, or leave of court, minimal expert discovery, tends to be the rule, in Massachusetts . Leave to take an expert deposition is not always freely given. See Denzer v. Barck, 2005 Super Lexis 28 (2005); Lozoraitis v. Lachman , 2003 Super Lexis, 401 (2003). Since expert reports are protected as work product and/or documents prepared in anticipation of litigation and/or trial, the parties, many times, do not have the benefit of an expert's actual signed opinion as set down in the report. Thus, undeposed experts can be moving targets, at trial, in Massachusetts state courts.

Who actually pays for the preparation time and testimony of the adverse expert has also been the subject of Motion practice.

Rule 26(b)(4)(C) of the Massachusetts Rules of Civil Procedure provides that the party seeking to take an opposing parties' expert deposition must pay all reasonable expenses relating to the deposition.

The rule states in relevant part:

Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery…

What is a reasonable fee for payment has been addressed in the Superior Court. The trial judge, in Routhier v. Hamilton , 2000 Mass. Supr. Lexis 627 at 5 (2000), required the deposing party to pay $3,500.00 for their expert's preparation and deposition even though the deposition would not require more than two hours.

Absent an agreement amongst counsel, it will be necessary to petition the court to get permission to take an expert's deposition. The deposition may or may not be allowed to go forward.

If the motion to depose the expert is not allowed, the moving Party may be limited to filing a Motion to Compel Further Answers to the Expert Interrogatories.

Deposition of the insurance carrier of the defendant, relating to prior payments to a defense expert, is a further means to gather expert discovery, especially for the purpose of impeachment. See McDaniel v. Pickens , 45 Mass.App.Ct. 63 (1998).

Expert discovery in Massachusetts is limited. In my view, the Massachusetts state courts should adopt the Federal Rules on expert discovery, especially as to the requirement that experts prepare and sign the reports relating to their opinions.

This is especially important, given that Massachusetts has adopted Daubert v. Merrell Dow Pharmaceuticals Inc. , 509 U.S. 579 (1993), in Canavan's Case . See Canavan's Case , 432 Mass.304; 733 N.E.2 nd 1042; (2000). Daubert and its progeny are cases involving the interpretation of the Federal Rules of Evidence. Daubert subsumes significant expert discovery, as permitted by the Federal Rules of Civil Procedures.

Unfortunately, in Massachusetts , although we have adopted Daubert , we have not adopted the protections provided by the Federal Rules of Civil Procedure, as they relate to expert discovery. For now, we can hope that trial judges will freely give leave to counsel, who want to depose an adversary's expert.