Discoverability, objectionable questions, pattern objections.
By Joseph A. Ranney
Excerpted from Deposition Objections
- Discoverability of Communications With Experts
- Objections at Expert’s Deposition
§20:01 When Is a Witness an Expert Witness?
Generally, anyone who has “scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or determine a fact in issue” is considered an expert witness. See Rule 702, Federal Rules of Evidence; see also, e.g., Cal. Evid. Code §720; Fla.Stat. §90.702. Experts, unlike non-experts, are allowed to present opinions as to ultimate issues in a case to the judge and jury. Id.
Not all expert witnesses are hired professionals. Expert witnesses can be categorized as follows:
- Retained testifying experts: Professionals in fields at issue in the lawsuit who are not personally familiar with the facts giving rise to the lawsuit but are retained by one party. The party gives them information about the case and asks them to give opinions on issues relevant to the lawsuit.
- Retained non-testifying experts: Professionals who are hired and asked to give opinions and advice behind the scenes but are not expected to testify at trial.
- Non-retained experts: People who are not hired to testify but are personally familiar with the facts giving rise to the lawsuit and have expertise that allows them to give opinions in the case. Examples include treating physicians in a personal injury case and fellow workers in a workplace injury case who have opinions on whether the workplace could have been made safer.
§20:02 Discovery of Expert Witnesses
Most jurisdictions have special rules regulating discovery of expert witnesses. Major changes in the federal rules for expert discovery were enacted in 1970 and 1993. See 48 F.R.D. 487 (1970) (setting forth the 1970 version of the Federal Rules of Civil Procedure and explaining the changes from previous versions); 146 F.R.D. 401 (1993) (same for the 1993 version of the Rules). Many state rules governing the scope of expert discovery are based on the 1970 Rules and the 1993 Rules. See Appendix 1.
1970 Rules. The 1970 federal rules governing expert discovery can be summarized as follows:
- The identities of all retained and non-retained experts expected to testify at trial may be discovered through interrogatories. The following information may also be obtained through interrogatories: the subject matter as to which the expert is expected to testify; the “substance of the [expert’s] facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” See Fed. R. Civ. P. 26(b)(4) (1970).
- Retained experts may not be deposed without court permission. See Fed. R. Civ. P. 26(b)(4)(A) (1970). However, the prevailing practice under the 1970 rules was to allow depositions of experts freely after they were identified. See C. Wright, A. Miller and R. Marcus, Federal Practice and Procedure (2008 ed.) § 2031, pp. 435-37 and authorities there cited. Many states that follow the 1970 Rules also allow depositions.
- Non-testifying experts are not subject to identification and may not be deposed unless the party seeking identification and deposition satisfies the court that “exceptional circumstances [exist] under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” See Fed. R. Civ. P. 26(b)(4)(C) (1970).
1993 Rules. The 1993 rules governing expert discovery can be summarized as follows:
- Identification of testifying experts is now mandatory: the opposing party need not submit interrogatories to obtain this information. Fed. R. Civ. P. 26(a)(2)(A).
- Testifying experts must produce written reports describing their background, the materials they have reviewed, the work they have done, their conclusions, and the reasons for those conclusions. Fed. R. Civ. P. 26(a)(2)(B).
- Testifying experts may be deposed as of right. Fed. R. Civ. P. 26(b)(4)(A).
- As under the 1970 Rules, non-testifying experts need not be identified and are not subject to deposition unless the opposing party can show “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.” Fed. R. Civ. P. 26(b)(4)(B)(ii).
Some states have adopted rules similar to the 1993 federal rules. See, e.g., Cal. Code Civ. P. §§2034.210 – 2034.310 (requiring parties to exchange expert witness information and “brief narrative statements” of each expert’s qualifications and anticipated testimony, allowing discovery of “all discoverable [expert] reports and writings” and allowing experts to be deposed freely). Other states still have rules similar to the 1970 federal rules. See, e.g., Ohio R. Civ. Proc. 26; Fla. R. Civ. P. 1.280 (allowing identification of experts by interrogatory only, but allowing identified experts to be deposed freely); N.Y. Civ. Practice Law §3101 (requiring the types of expert information listed in 1970 Rule 26(b)(4) to be produced and allowing expert depositions only upon showing of “special circumstances”).
Few states have adopted the 1970 Rules or 1993 Rules verbatim; therefore, check the state and local rules applicable to your case before responding to requests for expert discovery.
§20:03 Attorney Communications With Expert Witnesses
In order to handle objections effectively at expert witness depositions, you must bear in mind the special nature of attorneys’ communications with experts, which differ in important ways from communications with lay witnesses. Attorneys are allowed and expected to help shape expert witness testimony. That is not the case for lay witnesses.
Communications between attorneys and experts during the discovery process include the following:
- The attorney selects an expert and negotiates terms of employment with the expert.
- The attorney gives the expert his assignment and supplies him with materials describing the facts of the case. Usually the attorney meets personally with the expert to discuss the facts and issues of the case and the expert’s assignment.
- The attorney and the expert have an ongoing dialog while the expert is performing his work. The expert informs the attorney of the progress of the work and of his preliminary conclusions, and they discuss further work to be done by the expert. In some cases, the attorney critiques the expert’s work and suggests changes in direction as the expert proceeds.
- The attorney and expert discuss preparation of the expert’s report. Attorneys frequently assist experts in drafting and revising their reports. Often, expert opinions must be stated in a particular form in order to be admissible at trial. For example, many jurisdictions require that opinions be expressed as a probability rather than a possibility. See, e.g., Robinson v. Union Carbide Corp., 805 F.Supp. 514, 523 (E.D. Tenn. 1991) (applying Tennessee law). Many experts look to attorneys for help in shaping the report to comply with local court requirements.
- The attorney may work with the expert in preparing a rebuttal to reports and opinions of the opposing party’s experts.
The attorney prepares the expert for his deposition, including preparation for deposition objections.
Because attorneys are expected to help shape expert witness testimony, generally the information that you give to your testifying experts and communications between you and the experts are discoverable by the opposing party. Some courts have held that “core” attorney work product – that is, an attorney’s discussions of legal theories and strategy with the expert – is not discoverable, but other courts have held that it is. See Weil v. Long Island Sav. Bank FSB, 206 F.R.D. 38, 39-40 (E.D.N.Y. 2001) (holding that “core” work product communicated to an expert witness is discoverable and compiling cases on both sides of issue). Thus, objections to deposition questions about such information and communications are inappropriate in most situations. See §§20:10-20:13.
Before you discuss legal theories and strategy with your expert witness, check your jurisdiction’s case law to determine whether such discussions are discoverable.
§20:04 When Should You Object to Attempts to Depose a Non-Testifying Expert?
As noted above, in most jurisdictions non-testifying experts may be deposed only when “exceptional circumstances [exist] under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.” See, e.g., Fed. R. Civ. P. 26(b)(4)(B)(ii); Fla. R. Civ. P. §1.280(4)(c); Ohio R. Civ. P. 26(b)(4)(a).
Generally, “exceptional circumstances” exist only where a non-testifying expert has contributed so extensively to a testifying expert’s report that “the fruits of their labor are indivisible.” Herman v. Marine Midland Bank, 207 F.R.D. 26, 31 (W.D.N.Y. 2002) (holding that attorney who co-authored testifying expert’s report could be deposed). Compare Doe v. District of Columbia, 231 F.R.D. 27, 41 (D.D.C. 2005) (fact that testifying expert relied on interviews conducted by non-testifying expert did not create exceptional circumstances justifying deposition of non-testifying expert); Reginald Martin Agency, Inc. v. Conseco Med. Ins. Co., 460 F.Supp.2d 915, 921 (S.D. Ind. 2006) (same holding as to non-testifying consultant who assisted testifying expert in computing damages).
Thus, you should object to a demand for a deposition of your non-testifying expert unless that expert has worked so closely with a testifying expert that the testifying expert’s testimony cannot be understood or fully probed without a deposition of the non-testifying expert. See Chapter 2 for the procedure for objecting.
Be careful not to mention or disclose your non-testifying experts to opposing counsel.
If counsel does not know you have consulted with a non-testifying expert, he is unlikely to seek discovery of the expert unless he happens to learn of the consultation through other channels.
FORM: For a checklist of points to consider when laying the groundwork for an expert’s deposition, see Form 20-1 at the end of this chapter and on the CD.
§20:10 Facts Supplied by Attorney to Expert
Facts supplied by attorneys to experts are discoverable.See, e.g., In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001); Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289, 294-95 (W.D. Mich. 1995). Therefore, you should think carefully about what information you will give to your experts.
Generally it is best not to give your expert more information than he needs. However, you must be sure to give him all the facts he needs to form and defend his opinions.
Do not give your expert only the facts favoring your side of the case.
Opposing counsel will likely ask the expert at his deposition if he has evaluated all relevant materials. The expert must be prepared to address facts unfavorable to your case. An opinion that ignores adverse facts may not carry much weight with judges and juries.
§20:11 Objection: Opinion Testimony Standards and Applicable Legal Standards
- Objection. You are asking for legal information, not merely factual information supplied to the expert witness. The question calls for conclusions of law and for information that is attorney work product.
Attorneys commonly give several types of legal information to their experts:
- Opinion testimony standards. If your jurisdiction requires that expert opinions be expressed in a certain manner to be admissible, such as in terms of probabilities rather than possibilities, you should inform the expert of that standard.
- Legal standards governing liability and damages. You may also need to discuss with your expert the legal standards governing liability and damages in your case. For example, in a product liability case your expert may be asked to testify whether the product at issue was “in a defective condition unreasonably dangerous to the user or consumer” within the meaning of Restatement (2d) of Torts § 402A. It may be necessary to give him information about the legal criteria relevant to meeting that standard, such as whether the manufacturer used standard industry practices in making the product, whether the danger associated with the product was obvious, and what the economic costs and benefits of making the product safer would have been.
- Legal strategy and strengths and weaknesses of the case. Attorneys often discuss the legal strengths and weaknesses of the case frankly with their experts in order to explore ways to highlight the strengths and overcome the weaknesses.
Are such communications discoverable in a deposition or otherwise? The courts are divided over this issue. The Federal Rules of Civil Procedure require testifying experts to include in their reports a complete statement of the reasons for their opinions together with “the data or other information considered by the [expert] in forming them” and “any exhibits that will be used to summarize or support them.” Fed. R. Civ. P. 26(a)(2)(B). Most courts have concluded that this means all communications between attorney and expert, including both facts and legal analysis, are discoverable. See, e.g., Regional Airport Authority of Louisville v. LFG, LLC, 460 F.3d 697, 714-15 (6th Cir. 2006) (stating that such interpretation “represents the most natural reading of Rule 26, and finds strong support in the Advisory Committee Notes”);Elm Grove Coal Co. v. Director, Office of Workers’ Compensation Programs, 480 F.3d 278, 303 (4th Cir. 2007); Pioneer Hi-Bred, 238 F.3d at 1375.
However, a minority of courts have concluded that the attorney work product privilege applies to an attorney’s analysis and conclusions about the case even when shared with an expert. See, e.g., Smith v. Transducer Technology, Inc., 197 F.R.D. 260, 262 (D.V.I. 2000) (collecting cases and holding that facts supplied by attorney must be disclosed but “legal theories and the attorney-expert dialectic” need not be disclosed); Haworth, 162 F.R.D. at 294-95. See also In re Cendant Corp. Securities Litigation, 343 F.3d 658, 663 (3rd Cir. 2003) (stating that “work prepared in anticipation of litigation by an attorney or his agent” is discoverable upon a showing of need or hardship but that “core” work product, which the court defined to include work encompassing the “mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation” is afforded “near absolute protection from discovery”; citations omitted).
Generally you should not object if opposing counsel asks your expert what information he received as to opinion testimony standards and legal standards governing liability and damages. The expert cannot testify effectively without considering such standards, and it is to your interest to let opposing counsel know that the expert was given and considered the correct standards.
If you must give your expert information about the legal elements of the case, use official sources of information such as standardized jury instructions and copies of relevant cases.
That will enable you to argue that you presented the standards fairly to the expert and will help you rebut charges that you slanted the legal analysis to lead the expert to a desired opinion.
§20:12 Objection: Legal Analysis of the Case
- Objection. You are asking for information about legal analysis of the case by counsel, not merely for factual information supplied to the expert witness. The question calls for conclusions of law and for information that is attorney work product.
Sharing your concerns about the strengths and weaknesses of your case with your expert carries substantial risk, particularly in jurisdictions that allow discovery of all communications with experts. There are two main methods of reducing the risk:
- Discuss the weak spots in your case with your expert before your deadline for disclosing experts. If your expert can overcome the weak spots in your case (for example, if he can rebut adverse expert studies and opinions or can explain why unfavorable facts in your case, do not preclude an opinion favorable to your position), you can safely name the expert as a witness. If the expert believes the weak spots prevent him from forming a favorable opinion, you can elect not to name him and you will have time to search for another expert who has a more favorable opinion.
- Do not express pessimism to your expert. You do not want the expert to testify that you told him you believe you have a weak case! Present the weak facts to your expert without expressing your concerns, and devote the bulk of your conversation to looking for ways that the weak facts can be minimized or rebutted.
Example: You represent the plaintiff in a products liability case. You would like your expert to testify that the defendant manufacturer could have used an alternative design, but there is a recent study suggesting that the alternative design is unproven and more expensive than the manufacturer’s standard design. How do you address this with the expert?
- Wrong: I’m really worried about the Smith study. If the jury believes the study, it will find that Prodco’s design was the only one that was practical and cost-effective. What can we do?
Right: There are some aspects of the Smith study I want to discuss with you. Is it the authoritative study in the field? Are there other studies that have shown the alternative design was more effective? Did the authors of the Smith study correctly analyze the costs of Prodco’s system and the alternative system?
§20:13 Draft Materials and Draft Reports Generated by the Expert
Materials generated by a testifying expert during the course of his work on the case are discoverable. See Fed. R. Civ. Proc. 26(a)(2)(B) (expert must disclose “the data or other information considered” in forming his opinions and “any exhibits that will be used to summarize or support them”). Some states have similar rules. See, e.g., Cal. Code Civ. P. §§ 2034.260, 2034.270 (requiring expert to “submit to a meaningful oral deposition” and produce on demand “all discoverable reports and writings”).
Must a testifying expert retain and produce rough notes, draft reports, and other draft materials generated during the course of his work on the case? The few courts that have squarely addressed the issue have held that an expert is not required to maintain drafts of reports and other materials, but if he does so, they are discoverable. University of Pittsburgh v. Townsend, 2007 WL 1002317 (E.D. Tenn. 2007) (stating that “while not technically a required subject of disclosure … draft reports are certainly discoverable” and suggesting that a duty to maintain drafts arises after an opposing party formally requests that drafts be produced). See also Sandata Technologies, Inc. v. Infocrossing, Inc., 2007 WL 4157163 (S.D.N.Y. 2007) (citing Townsend with approval). A few states have enacted rules explicitly exempting drafts from discovery. See N.J. Ct. Rules 4:10-2(d)(1) and 4:17-4(e).
In short, your expert probably has no duty to preserve notes, reports, and other draft materials unless and until the opposing party makes a formal request for such documents. After that time, the expert may have a duty to retain such materials and they may be discoverable.
Consider having all parties stipulate that drafts will not be discoverable.
In some cases parties to a lawsuit, recognizing that efforts to discover notes and draft reports may make it difficult for both sides’ experts to do their work, agree that draft materials will not be subject to discovery. Such an agreement allows the parties to avoid the expense of disputes as to discoverability of draft materials.
FORM: For a sample letter confirming an agreement that drafts will not be discoverable, see Form 20-3 at the end of this chapter and on the CD.
Encourage your expert to produce as few draft materials as possible.
The fact that an expert may be required to produce his draft materials does not mean that he has a duty to create such materials in the first place.
On the other hand, it is more important for the expert to do his work well, even if that means generating copious draft materials, rather than avoid drafts altogether. Your expert should be prepared to explain at his deposition any discrepancies between his draft notes and reports and the facts and conclusions contained in his final notes and reports.
§20:20 Objection: Question Outside the Scope of the Expert’s Assigned Task
- Objection. The question calls for testimony [or an opinion] as to subjects that we have not asked the expert to address.
Attorneys generally assign experts clearly defined and limited tasks. However, deposing attorneys sometimes ask the expert about his opinions in areas outside the scope of his assigned tasks.
Example: Suppose that in a product liability case the plaintiff claims the manufacturer is liable for negligent manufacture of a defective product and that the distributor is liable for failure to give proper instructions and warnings about the product. Plaintiff retains an expert to give an opinion only as to the manufacturer’s liability, but the expert has experience with responsibilities of product distributors. If defense counsel asks the expert at deposition whether the expert has an opinion as to the distributor’s liability, should you object?
Generally, attempts to get the expert to testify to matters outside his assignment are improper. Bailey v. Meister Brau, Inc.,57 F.R.D. 11, 14 (N.D. Ill. 1972) (suggesting that to the extent an expert forms opinions about matters outside the scope of his assignment, he should be treated as a non-testifying expert and such opinions are discoverable only in exceptional cases).
However, you should not automatically instruct an expert not to answer questions going outside the scope of his assignment. If such questions are posed and the expert is likely to respond in a way which will help your case, do not object.
§20:21 Objection: Questions to Expert That Lack Foundation
- Objection. The question is based on an assumption that [is incorrect] [has not been established], namely [explain the assumption].
One of the most common deposition objections is that a question is “loaded” because it is based on assumptions of fact that are not accurate. See Chapter 13 for a detailed discussion of how to handle “loaded” questions and make objections based on lack of foundation.
Example: You represent the defendant, Dinah Storm, in an auto accident case. Your client has testified that she proceeded into the intersection where the accident happened on a flashing yellow traffic signal; there is no evidence in the case to the contrary. The plaintiff is deposing your accident reconstruction expert. Deposing counsel misremembers the record and asks:
Q: Have you made a calculation as to how far Ms. Storm was from the intersection when the light turned red?
Generally, you should be more cautious in making lack-of-foundation objections during expert witness depositions than during depositions of lay witnesses. Experts often make assumptions in order to reach their opinions in a case. For example:
- In a product liability case there may be conflicting evidence as to whether a particular product is defective. If you represent the plaintiff, your expert may have to assume that the facts favoring the plaintiff are true in order to reach an opinion favorable to the plaintiff. This is perfectly acceptable, but it is also acceptable for defense counsel to challenge the expert’s assumptions and to ask the expert what her opinion would be if countervailing facts favorable to the defendant were true.
- Experts who are asked to calculate an accident victim’s future lost income often calculate a “present value” of the victim’s lifetime income stream by discounting the value of income in future years. Simply put, this reflects the fact that if the plaintiff receives a damages award today, he will be able to earn interest on the money from the time of the award up to the year for which the money represents lost income. Experts often disagree on what the proper discount factor is. It is acceptable for defense counsel to ask the expert questions based on a discount factor favorable to the defense.
If the deposing attorney asks an expert a question based on assumptions of fact for which there is no support whatsoever, you should object to the question based on lack of foundation. If the attorney asks a question based on facts for which there is some support, whether you object depends on how the attorney puts the question. If the attorney asks the question as though the fact at issue is conclusively established, you should object. But if the attorney makes clear that she is asking the witness to make an assumption, then an objection may not be necessary. The following example illustrates the distinction:
Example: In the Joan Arcuri auto accident case described in Chapter 5, Joan, who was injured while riding in a Tyrannosaurus Guzzler SUV, claims that the accident was caused by a defective brake. The brake spring for the SUV’s left front wheel was found in the “off” position after the accident. Joan claims the spring was in the “off” position at all times because the brake spring never worked.
Tyrannosaurus makes a Type G-1 device that automatically releases the brake spring to the “off” position when the SUV comes to a halt. The G-1 device is not standard equipment and there is conflicting evidence whether the SUV had the G-1 device. A heavily damaged piece of metal resembling the G-1 device was found in the left front wheel braking mechanism after the accident.
You represent Joan. Your expert, Barney Stutz, has told you the piece of metal was not a G-1 device and that the brake design of the SUV involved in the accident was such that the spring must have been in the “off” position during the entire course of the accident. Tyrannosaurus’s expert has opined that the piece of metal was a G-1 device and that the brake spring operated normally and went to the “on” position as the SUV driver braked but went to the “off” position automatically when the SUV came to a stop after the accident.
Tyrannosaurus’s attorney is deposing Stutz. He asks:
Q: Isn’t it true that the G-1 device in the SUV’s left front wheel brake would release the brake spring automatically once the vehicle stopped?
YOU: Objection; lack of foundation. Your question assumes that the left front wheel brake had a G-1 device.
But if the attorney asks the question differently, there is no need to object:
Q: Mr. Stutz, I want you to assume that that piece of metal in the brake was a G-1 device. If that’s true, isn’t it also true that the device would release the brake spring automatically once the vehicle stopped?
§20:22 Objection: Answer Reveals Confidential Information
- Objection. The question requires the witness to refer to confidential information, and there are persons in the room who are not allowed access to that information. The witness may answer the question when those persons leave the room.
Experts are often provided with sensitive materials that are subject to a protective order allowing them to be shown only to a limited number of persons. For example, in a lawsuit involving a business dispute, damages experts may need to review confidential corporate financial information. In a trade secret misappropriation case, the defendant’s liability expert may need to review the information at issue in order to determine whether it is really a trade secret. See Chapter 1, Form 1-7 for an example of a protective order that limits access to confidential information but allows experts to see such information.
In a deposition, an expert may be asked to comment on confidential materials or to produce confidential documents while someone is present in the room who is not allowed access to those materials. In such cases you should object and instruct the expert not to answer until all unauthorized persons have left the room. You should also make sure that the portion of the deposition transcript containing the expert’s testimony as to confidential matters will be marked confidential and will not be disclosed to unauthorized persons.
If you anticipate that confidential information will be discussed at the deposition, take a copy of the protective order to the deposition.
If there is a dispute as to whether certain persons must leave the room before confidential information is discussed, the protective order will provide the answer to the dispute.
§20:23 Objection: Opposing Party’s Failure to Compensate the Expert
- We object to this deposition because the opposing party has not agreed to pay the expert for his time and expense in giving this deposition. We will seek an order from the Court requiring payment.
Federal courts require the party deposing an expert to pay “a reasonable fee for time spent in responding to [the] discovery … unless manifest injustice would result.” Fed. R. Civ. P. 26(b)(4)(C)(i). Many states have adopted similar rules. See, e.g., N.Y. Civ. Practice Law §3101 (allowing discovery of experts following initial disclosure “subject to … provisions concerning fees and expenses as the court may deem appropriate”); Fla. R. Civ. P. 1.280(4)(C).
Many experts charge high fees and incur significant time and expense in preparing for and giving a deposition. It is not always easy to discern the dividing line between the expert’s general preparation work (for which the hiring party is responsible) and deposition-related work and expenses (for which the deposing party is responsible). As a result, disputes often arise as to the amount the deposing party is obligated to pay. Courts generally resolve such disputes on a practical basis by looking closely at what the expert did to get ready for and give the deposition. See, e.g., U.S. Energy Corp. v. Nukem, Inc., 163 F.R.D. 344, 345-46 (D. Colo. 1995) (discussing factors that courts consider).
Parties with limited funds often seek exemption from the payment requirement under the “manifest injustice” prong of Rule 26(b)(4)(C)(i). Courts occasionally grant such exemptions. See, e.g., Reed v. Binder, 165 F.R.D. 424, 427 (D.N.J. 1996) (holding that plaintiff was not required to pay for deposition of defendant’s experts where plaintiff was impoverished and defendant was affluent); Harris v. San Jose Mercury News, Inc., 235 F.R.D. 471, 473-74 (N.D. Cal. 2006) (plaintiff not required to pay for deposition of two of defendant’s experts where plaintiff was insolvent, case involved issues of public importance, and plaintiff did not have rebuttal experts); Rogers v. Penland, 232 F.R.D. 581, 583 (E.D. Tex. 2005) (deposing party not required to pay for deposition of expert who was not called at trial and as to whom a Daubert reliability challenge had been sustained).
If you have a concern about your expert getting paid, should you raise it at the deposition? Should you refuse to let the deposition go forward if deposing counsel will not commit to paying the expert? Courts may order payment of expert fees and costs either before or after a deposition. Chambers v. Ingram, 858 F.2d 351, 360-61 (7th Cir. 1988) (holding that fee requests may be made after completion of discovery); Note to Rule 26(b)(4)(C), 48 F.R.D. at 505. Given this fact, it is risky to refuse to let a deposition go forward until payment is made. Most courts will compel the deposing party to pay after the deposition if payment is appropriate, and they do not look kindly on deposition delays.
However, if there is an issue as to payment it is important to make an objection and state your demand for payment on the record at the beginning of the deposition in order to avoid any later argument that you have waived your right to payment. See Mathews v. United States, 756 F.Supp. 511, 515 (D. Kan. 1991) (indicating that in the absence of a specific demand for payment under Rule 26 during discovery or an explicit agreement that each side would pay for its depositions of the other’s experts, court could not award expert deposition costs to the producing party).
Identify and resolve before the deposition any dispute as to who will pay the expert’s deposition fees and costs.
As early as possible in the case, discuss with opposing counsel and confirm in writing the fact that each side will pay fees and expenses associated with deposing the other side’s experts. If there is a dispute about payment, try to resolve it informally.
FORM: For a sample letter confirming an agreement as to payment of an expert witness’s fees, see Form 20-4 at the end of this chapter and on the CD.
§20:30 Objection: Expert’s Methodology and Opinions
- Objection. The question challenging the expert’s methodology and opinions is objectionable because it is argumentative and calls for conclusions of law.
In recent years, as the pace of scientific innovation has accelerated, experts increasingly have come under attack for giving opinions based on controversial scientific theories and data – in the words of their opponents, “junk science.”
Prior to 1993, federal courts generally held that scientific opinions were inadmissible if they had not “gained general acceptance in the particular field in which [they] belong.” See Frye v. United States,293 F. 1013 (D.C. Cir. 1923). In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court held it is not necessary to show that an expert’s opinions and testimony are generally accepted by other experts in the field, but it made clear that trial courts must perform a “gatekeeper” function by screening such evidence for reliability before it is admitted. 509 U.S. at 588.
The Daubert Court identified five factors trial courts should consider in evaluating the admissibility of expert evidence: (1) whether a scientific technique has been tested in the field as well as in a laboratory; (2) whether the technique has been subjected to peer review and publication; (3) whether the known or potential rate of error is low; (4) whether standards exist to ensure that the technique will be applied in a standard manner in the laboratory and the field; and (5) whether the technique has been “generally accepted within the relevant scientific community.” 509 U.S. at 593-94. The Daubert standards apply to all expert testimony, including non-scientific testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999).
Issues as to whether an expert’s methodology and opinions pass muster under Daubert hardly ever come up at depositions. Typically, a deposing attorney who is considering a Daubert challenge to the opposing expert’s testimony will use the deposition to fully develop the basis (or lack of basis) for the expert’s opinions. The attorney will then seek to exclude or limit the expert’s testimony through a pre-trial motion in limine.
If an attorney asks a question at a deposition directly challenging an expert’s methodology and opinions as “junk science,” you can object to the question as argumentative and as calling for legal conclusions if the question is worded so as not to call for any fact testimony.
Examples: Examples of questions touching on Daubert issues, one of which is purely argumentative and legal and one of which is not, together with possible responses, are as follows:
Q: You have testified that your astrological calculations show the world was created 6,000 years ago. Isn’t it true that astrology is useful only as entertainment and is not based on science, and that no court of law would ever accept it?
WITNESS’S ATTORNEY: I object. The question is argumentative and calls for a legal conclusion about what a court would do.
Q: You have testified that your astrological calculations show the world was created 6,000 years ago. Isn’t it true that no scientific organization recognizes astrology as a basis for forming opinions about the age of the world, and that the American Association for the Advancement of Science has concluded that your work in this field has no scientific merit?
WITNESS’S ATTORNEY: I object. The question is argumentative. You may answer as to what scientific organizations have said about astrology and what scientists have said about your work.
§20:31 Objection: Expert’s Qualifications
- Objection. The question calls for testimony [or an opinion] outside of the witness’s area of expertise.
Objections concerning an expert’s qualifications are rarely made at depositions. If the deposing attorney is interested in attacking the expert’s qualifications, usually she will concentrate on eliciting the details of those qualifications and will save any objection for a post-deposition motion to limit or bar the expert’s testimony. If a deposing attorney asks questions about subjects or opinions that go beyond your expert’s area of expertise, the expert can simply say that he has formed no opinions as to the subject.
Example: In the Joan Arcuri case, you represent Joan. Tyrannosaurus’s attorney is deposing your liability expert, Barney Stutz. Barney is an expert on brake design and you are using him to testify about that subject. Barney has no knowledge of accident reconstruction (that is, examination of an accident site and accident reports in order to determine where the vehicles were located at various times relevant to the accident) and you have not asked him to reconstruct Joan’s accident. Tyrannosaurus’s attorney asks:
Q: Do you have an opinion as to how far Ms. Arcuri’s SUV was from the far edge of the gravel shoulder of the road at the time the driver first started braking?
YOU: Objection. The question calls for testimony about accident reconstruction. There’s no evidence that Mr. Stutz is qualified to offer opinions on that subject and we are not going to use him as an expert on that subject.
Q: Mr. Stutz, do you have any training or experience in accident reconstruction?
Q: Do you have an opinion on the question I just asked?
YOU: Same objection as before.
A: No, I don’t. I don’t think I would be qualified to give an opinion on that subject.
Joseph A. Ranney is an attorney with the Madison, Wisconsinoffice of DeWitt Ross & Stevens S.C., where he specializes in commercial and intellectual property litigation and in constitutional law.
Mr. Ranney was born in 1952 in Urbana, Illinois. He received a B.A. degree from theUniversity of Chicagoin 1972 and a J.D. degree from YaleLawSchoolin 1978. He has litigated cases in the Wisconsinand Colorado state courts and in federal courts throughout the United States.
Mr. Ranney is also an adjunct professor at MarquetteLawSchoolin Milwaukee, Wisconsin. He is the author of two books, Trusting Nothing to Providence: A History of Wisconsin’s Legal System (1999), named by the American Library Association as one of 15 Notable State and Local Government Documents for that year, and In the Wake of Slavery: Civil War, Civil Rights and the Reconstruction of Southern Law (2006). Mr. Ranney has written numerous articles and has lectured extensively on civil procedure, constitutional law, legal history and other legal subjects. He has received the State Bar of Wisconsin Charles Dunn Award (1992) and the State Bar President’s Award (2003) for his writing.