What Do You Mean You’re Not Bringing Your Expert to Trial?

You just crushed your opponent’s expert at deposition, obtaining numerous damaging admissions that will affirmatively help your case. Your deposition went so well that you are starting to think about calling that expert in your case-in-chief. You’re already rehearsing your closing argument: “Even the other side’s expert agrees!”

But you’re also getting paranoid: “What if my opponent refuses to bring that expert to trial? What if that expert is outside the court’s subpoena power? Surely, I can call the other side’s expert in my case-in-chief by deposition at least—right?”

Not so fast. You’ll need to carefully research the law in your jurisdiction. When it comes to sorting through the possible outcomes, the Bluebook does not contain enough “See” and “But see” signals to accommodate the diversity of judicial viewpoints out there.

This article covers the main issues that you’ll want to consider with respect to federal law. (If your case is in state court, you should obviously consult state law authority in your forum.) In federal courts, outcomes differ significantly on whether you can call a “withdrawn” adverse expert as your witness, depending on what jurisdiction you’re in and whether the expert you want to call is within the trial court’s subpoena power.

Expert Witness Within Trial Court’s Subpoena Power

Generally speaking, before an expert has been designated as a testifying expert, the work-product protection afforded to consulting experts under Federal Rule of Civil Procedure 26(b)(4)(D) prevents discovery of that expert’s opinions absent a showing of exceptional circumstances. See Fed. R. Civ. P. 26(b)(4)(D). After that expert has been designated as a testifying expert under Rule 26(a)(2), however, courts generally have discretion to allow either party to call the expert live at trial in its case-in-chief. See Peterson v. Willie, 81 F.3d 1033, 1037–38 (11th Cir. 1996); AMTRAK v. Certain Temp. Easements above the R.R. Right of Way in Providence, R.I., 357 F.3d 36, 42 (1st Cir. 2004).

What happens if a party tries to “undesignate” a testifying expert and objects to any further discovery from that witness, such as sitting for a deposition or giving trial testimony? Can a party convert a testifying expert back into a protected consulting expert? Courts are split. If the expert’s deposition has not yet occurred, some courts have answered yes to that question. See, e.g., Callaway Golf Co. v. Dunlop Slazenger Grp. Ams., Inc., No. 01-669 (MPT), 2002 U.S. Dist. LEXIS 15429, at *11–12 (D. Del. Aug. 14, 2002). Other courts have reached the opposite conclusion, holding that once an expert has been disclosed as a testifying expert under Rule 26(a)(2), any subsequent attempt to withdraw that designation will be ineffective in preventing that expert’s deposition or trial testimony. See, e.g., Kerns v. Pro-Foam of S. Ala., Inc., 572 F. Supp. 2d 1303, 1309–11 (S.D. Ala. 2007); Penn Nat’l Ins. Co. v. HNI Corp., 245 F.R.D. 190, 193–94 (M.D. Pa. 2007).

Here’s another interesting question that courts have addressed: If a party is allowed to call an opponent’s expert at trial, can that party tell the jury that the other side originally retained the expert? Many courts have answered no to that question, finding that allowing the jury to conclude that the other party had something to hide by not calling its expert itself would be too prejudicial. Peterson, 81 F.3d at 1037–38; Ferguson v. Michael Foods, Inc., 189 F.R.D. 408, 410 (D. Minn. 1999). But see Kerns, 572 F. Supp. 2d at 1310. This is a surprising result. If the point of a trial is to discover the truth, then why shouldn’t a party be allowed to say that both sides’ experts arrived at the same conclusion?

Expert Witness Outside Trial Court’s Subpoena Power

Different rules apply when the opposing party’s expert lies outside the trial court’s subpoena power and therefore cannot be compelled to testify live at trial. In that case, courts have split on whether the expert’s deposition may be played at trial in lieu of live witness testimony.

Generally, a party may call a witness by deposition at trial as long as that witness is outside the trial court’s subpoena power and a valid hearsay exception exists. See Fed. R. Civ. P. 32.

One hearsay exception allows a party to call a witness by deposition who is “unavailable” and whose testimony is being offered against another party who had “an opportunity and similar motive” to develop the testimony by direct, cross-, or redirect examination. See Fed. R. Evid. 804(b)(1). But not all courts agree that an expert witness is “unavailable” merely because he or she is outside the trial court’s subpoena power. Some courts may expect the party trying to call the expert to make independent efforts to secure that expert’s voluntary attendance at trial. Compare Kirk v. Raymark Indus., Inc., 61 F.3d 147, 165 (3d Cir. 1995), with In re Bard IVC Filters Prods. Liab. Litig., No. MDL 15-02641-PHX-DGC, 2018 U.S. Dist. LEXIS 39061, at *274–75 (D. Ariz. Mar. 9, 2018). Nor do all courts agree that the party defending its own expert at a deposition has a “similar motive” to develop that expert’s testimony by direct, cross-, or redirect examination. Compare Am. Auto. Co. v. Omega Flex, Inc., No. 4:11CV00305 AGF, 2013 U.S. Dist. LEXIS 197281, at *5 (E.D. Mo. July 5, 2013), with In re Bard IVC Filters Prods. Liab. Litig., 2018 U.S. Dist. LEXIS 39061, at *274–75.

Other hearsay exceptions allow for the admission of a statement offered against an opposing party if the opposing party “authorized” the person to make the statement, or if the statement was made by the party’s “agent” within the scope of the relationship. See Fed. R. Evid. 801(d)(2)(C); Fed. R. Evid. 801(d)(2)(D). Here, too, courts are split on whether these exceptions apply to expert witnesses. See, e.g., Pernix Ir. Pain DAC v. Alvogen Malta Operations Ltd., 316 F. Supp. 3d 816, 821 (D. Del. 2018). Some courts have concluded that experts are independent actors and therefore cannot be considered “agents” of a party or “authorized” by a party to make statements on its behalf. See Kirk, 61 F.3d at 164. Other courts have reached the opposite conclusion. See Collins v. Wayne Corp., 621 F.2d 777, 782 (5th Cir. 1980).

Conclusion

Navigating these issues requires careful attention to the case law in your jurisdiction and, often, the attitudes of your judge and the policies underlying the different outcomes in these cases. These issues also highlight the importance of taking extreme care in selecting your expert, preparing her for deposition, conducting a mock cross-examination, and listening carefully to how your expert answers the toughest questions that your opponent might ask. It also reinforces the importance of bringing a videographer to the deposition of your opponent’s expert and seeking trial-quality deposition testimony that will maintain the attention of your jury.