Expert Disclosures

For some reason, I keep seeing answers to discovery responses and expert disclosures in Mississippi by a number of attorneys getting pretty sloppy.  Expert disclosures are governed by four things in Mississippi:  (1)  Rule 26 of the Rules of Civil Procedure; (2)  Rule 1.10 of the Uniform Chancery Court Rules if you are in Chancery Court; (3)  Rule 4.04 of the Uniform Circuit and County Court; and the often overlooked (4)  what the opposing attorney has asked for in discovery.  I have had several cases where I have disqualified an expert or the opposing party has decided to not use the expert they originally wanted to because they could not provide the information as required by the Rules. 

Here is the high points to watch out for:

(1)  Must designate sixty (60) days before trial:

Both Rule 1.10 of the Uniform Chancery Court Rules and Rule 4.04 of the Uniform Circuit and County Court Rules require an expert to be designated sixty (60) days before trial.    In Hammers v. Hammers, 890 So.2d 944 (Miss. 2002), the Supreme Court affirmed the chancellor after he prohibited an expert witness who was designated after the sixty day requirement of Chancery Rule 1.10.  The expert was to testify as to the valuation of a family business in a divorce case that had been ongoing for approximately two years.

(2)  Must supplement discovery response if opinion changes:

Mississippi Rule of Civil Procedure 26(f)(1) provides that "a party is under a duty seasonably to supplement his response with respect to any question directly addressed to ... (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony."  The purpose of discovery rules is to "avoid trial by ambush" and have "a reasonable time to prepare for trial." Congleton v. Shellfish Culture, Inc., 807 So. 2d 492, 496 (Miss. Ct. App. 2002).  This is particularly true "where the interrogatory asks for disclosure of expert witnesses." Harris v. Gen. Host Corp., 503 So. 2d 795, 797 (Miss. 1986). The supreme court has deemed it "inherently unfair and a violation of our rules of civil procedure for a plaintiff" who has violated the discovery rules "to appear at trial with experts whose opinions have not been properly disclosed to the defendants." Banks v. Hill, 978 So. 2d 663, 666 (Miss. 2008).  The trial court must determine whether a response is "seasonable" on a case‑by‑case basis by "looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit." Buchanan v. Ameristar Casino Vicksburg, Inc., 957 So. 2d 969, 973  (Miss. 2007).  “If the expert witness plans to testify on complex matters or on an issue that may be the turning factor in a case, then it is important that the necessary time be allotted prior to trial to depose said expert, transcribe the deposition, meticulously study the testimony and, if necessary, solicit a rebuttal expert witness to refute the former expert's planned testimony.”  Motorola Commc'ns & Elecs., Inc. v. Wilkerson, 555 So. 2d 713, 717 (Miss. 1989).

(3)  Must have actually asked for disclosure of the other sides expert: 

This is an issue that lots of attorneys don't know about.  Mississippi Rule of Civil Procedure 26 is to be strictly interpreted and should be rigidly enforced. Hudson v. Parvin, 582 So.2d 403, 412‑13 (Miss.1991).   M.R.C.P.  26(b)(4)(A)(i) states, “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial.”  “When requested, parties must disclose the opinions of expert witnesses and the underlying grounds of opinions.” Peterson v. Ladner,785 So.2d 290 (Miss. Ct.App. 2000).  (Emphasis added).    

The 60 day notice mandated in Uniform Chancery Rule 1.10  does not apply unless opposing counsel makes a discovery request to designate experts.   Jackson v. Perry, 764 So.2d 373, 384 (Miss. 2000).  Logically, this should also apply in Circuit and County Court since the rule is largely identical. 

If you don't ask, other side has no duty to disclose.

(4)  Make sure designation provides everything required by Rule 26:

This is one of my complaining points especially by defense attorneys.  I have seen designations that simply say, will testify that Plaintiff has not hurt.  Needless to say, that is not enough.  I try to go down through Rule 26 and have list each thing the rule requires and disclose all information.  Truth be known, if the other side discloses what all if required by the Rules, it is normally a waste of time to depose them unless you are strategically planning a Daubert motion I previously discussed some here. 

Here is a list of the items generally that should be in the disclosure:
         (a)  Name, address, telephone number, and field of expertise
         (b)  Reserve right to supplement opinion in disclosure
         (c)  CV of qualifications of expert
         (d)  Opinion in a great of detail as possible and the items relied on in making opinion - can rely  on hearsay per Rule 702 of the Rules of Evidence (another issue commonly overlooked).  I normally try to list out specifically any documents or records relied on.
         (e)   Opinion must be dates with a "reasonable degree of certainty" - this is where 90% of Daubert challenges occur because party will say this "could" be happening as opposing to this "is" happening with a reasonable degree of certainty. 

Hope this information helps in both selecting an expert and making sure they can actually make it to the stand.  Needless to say, the look on opposing counsel's face when their expert is struck often means the case is over.