Particularly in mass tort litigation, attorneys often face choices about how many experts to disclose, what specialty (or specialties) are necessary for the litigation, and—as part and parcel of those considerations—whether one expert witness can address topics that ideally might be handled by another expert or even by other non-designated witnesses. Minimizing the total number of expert witnesses may be strategically appropriate for a variety of reasons: It can make a case more palatable for the jury, and it can be an effective way to reduce costs to the client. Courts also may limit the number of experts under case management orders.
Against these competing interests, counsel must balance the need for efficiency with the limitations imposed by civil rules and case law. This article explores, under federal law, instances where experts may offer opinions based on other experts’ opinions, as well as situations where an expert may rely on an undisclosed witness’s findings to support his or her opinion.