Diseovery Proeedures and the Limitation of Expert Testimony At Trial

How often has it happened to you? The expert witness, while testifying on the stand, seeks to give testimony beyond the opinions set forth in the report. A number of reported Appellate Division decisions have dealt with this issue and this article discusses some of the legal and practical implications of the problem.

THE TECHNICAL REQUIREMENTS

The starting point for determining the scope of an expert's trial testimony is the method through which the expert report is requested during discovery.

An expert's report may be obtained through discovery by two distinctly dif­ferent interrogatories. Under the first, a party is merely asked to attach a copy of an expert's report to his answers. R. 4: 17-4(a); R.4-17-4(e). Under the second, the answering party is required to state the subject matter on which the expert is to testify and the substance and facts of the expert's testimony. R.4: 10-2 (d)(I).

When the rules of discovery are read in conjunction with the rules of evidence, it becomes clear that the first form of expert discovery (attaching a copy) will have little effect on limiting an expert's testimony. However, the second form of interrogatory (state­ment of substance and facts) may have a great deal of limiting power.

Preclusive Effect The second form of interrogatory has

a greater preclusive effect on future testimony because any answer to an interrogatory is a statement by a party and is therefore admissible at trial as an admission. Biunno, N.J. Rules of Evidence, Rule 63(7), (Gann 1993). As the court has noted, because the answer is held as an admission, the party will be barred from introducing at trial

evidence of facts and opinions that are inconsistent with the facts and opinions stated in answers to interrogatories. Skibinski v. Smith, 206 N.J . Super. 349, 353 (App. Div. 1985). Such a writte.n admission provided in discovery may also be used by an adverse party to establish conclusively any fact ad­mitted. Id. See also, R.4:22-2 (Effect of Admission).

Merely furnishing a copy of an expert's report in response to an inter­rogatory instruction does not produce the same preclusive effect on future expert testimony. Although an expert's report is also a statement, it is not a statement of a party and therefore cannot be treated as an admission simply because a party furnished it in the discovery process. Id .

In discussing the question of why there is confusion over the issue of whether or not an expert is allowed to testify beyond the scope of his report, the Skibinski court stated,

Confusion occurs because, as a matter of convenience, R.4: 10-2 (d)(l) permits a party to require another party to furnish his ex­pert's report "through interrog­atories" rather than through the more cumbersome procedure of production and copying of docu­ments pursuant to R.4: IS-I. State­ments in an expert's report that are inconsistent with testimony are admissible in cross-examining the expert because inconsistent

By David R. Kott* (McCarter & English)

statements of any witness are admissible. Evid.R.63(l)(a). But, just as the testimony of a witness may not be limited to the content of his prior statement, the testi­mony of an expert witness may not be limited to the content of his report simply because the report had been furnished in discovery, 206 N.J. Super. at 353 (emphasis added). Thus, a report furnished through dis­

covery may not have a limiting effect on the scope of an adversary's expert testimony. However, a request for the adverse party himself to provide a statement of the substance of the expert's report can have a limiting effect on the scope and facts of expert testimony at trial, since the expert's testimony is treated as an adoptive admission under Evid. R.63(S)(b). As noted in the official comment, "[g]enerally, if a party adopts statements or reports of others (such as experts) by relying on them specifically in order to answer interrogatories, they will be deemed adoptive admissions under Rule 63(S)(b)." Evid. R.63(S),

*To the extent that anything in this Article is well-researched. weI/-reasoned or well-written. the credit goes to John Jacobus. Esq .. Sean Byrnes and/or Candy Beagles. To the extent the Article does not meet that criteria. the blame goes to David KOll .

Comment 2, citing, Skibinski, 206 N.J. Super. at 354.

Earlier Cases A word of caution must be intro­

duced concerning adoptive admissions. Skibinski held that the adoptive admis­sions rule will foreclose testimony out­side the scope of the answers to inter­rogatories. Skibinski,206 N.J. Super. at 353-54. The court, however, does not mention two earlier cases which reached different results. Gunter v. Fischer Scientific American, 193 N.J. Super. 688 (App. Div. 1984); Ortiz v. Van Wagoner, 197 N.J. Super. 523 (Law Div. 1984). Although both cases are distinguishable from Skibinski, it is important to note their existence.

In Ortiz, the plaintiff father and son sought to introduce into evidence a defense medical report concerning injuries suffered by the son as a result of an automobile accident. The son was examined by the doctor at the de­fendant's request. However, the medical reports were not completed until after the defendant submitted her answers to interrogatories. Counsel for the de­fendant received copies of the reports and forwarded them to the plaintiff under the requirements of Rule 4: 19. Plaintiffs attempted to introduce the reports, which had been appended to the answers, as an adoptive admission under Evidence Rule 63(8)(6).

The court barred the introduction of the evidence, stating that the plaintiff had not demonstrated that the de­fendant even knew what the physician had written. Therefore, the defendant could not be deemed to have adopted the contents of the report simply because her attorney forwarded them pursuant to the court rules. Such a transmittal of reports does not con­stitute a knowledgeable adoption impliedly or expressly manifesting a belief in the truth of the contents of the report. Ortiz, 197 N.J. Super. at 528. See also, Evid. R. 63(8), Comment 2.

Similarly, in Gunter, a claimant's treating physician submitted reports to the employer's insurance carrier in a worker's compensation action. Gunter, 193 N.J. Super. 688,693. The court held

the reports were inamissible against the company as an adoptive admission, even though the doctor was the com­pany doctor. Gunter, 193 N.J. Super. at 694. See also, Evid. R.63(8), Comment 2.

In both Ortiz and Gunter, the experts' reports were held not to have been adopted because the parties responding to the interrogatories did not them­selves expressly or impliedly rely on the reports. Thus, it appears that these cases do not directly conflict with Skibinski. Rather, they do not fit within the clear language of Evidence Rule 63(8)(b), which Skibinski applied unequivocally.

The Discretion Of The Trial Court

The trial judge has broad discretion to preclude an expert from testifying at trial on a subject that is beyond the scope of a report. Ratner v. General Motors Corp., 241 N.J. Super. 197,202

(App. Div. 1990) (citing Nicholl v. Reagan, 208 N.J. Super. 644,651 (App. Div. 1986»; Mauro v. Owens-Corning Fiberglas, 255 N.J. Super. 196, 206 (App. Div. 1988), aff'd 116 N.J. 126 (1989); Gaido v. Weiser, 227 N.J. Super. 175,192(App. Div. 1988), aff'd 115 N.J. 310 (1989).

The trial judge's discretion with regard to exclusion of expert testimony not within the scope of a furnished report is subject only to the rule that any sanction be just and reasonable. Ratner, 241 N.J. Super. at 202 (citing Westphal v. Guarino, 163 N.J. Super. 139, 145-46 (App. Div. 1978», aff'd o.b. 78 N.J. 308 (1978»; Mauro v. Owens-Corning Fiberglas, Supra; Gaido v. Weisr, Supra (citing Westphal); Kurdek v. West Orange Educ. Board, 222 N.J. Super. 218, 222 (Law Div. 1987). Factors the court may consider include "absence of a design to mislead, ... the absence of the element of surprise if the evidence is admitted, and ... absence of prejudice which would result from the admission of the evidence ." Ratner, 241 N.J. Super. at 202.

If counsel opposed to the expert witness would be surprised or prejudiced by the expert 's additional testimony, the proper objection must be made. Mauro,

Supra at 206. In Mauro, plaintiffs expert's testimony regarding statistical and epidemiological studies was held to be prejudicial and surprising where the data and statistics the expert witness relied on had not been made available to the defendants. Id .

Similarly, in Catando v. Sheraton Poste Inn, 249 N.J. Super. 353 (App. Div. 1991), the trial court excluded the plaintiff's expert's testimony. The plaintiff had engaged the expert before trial but failed to supply his name until the first day of trial. Id. at 257. The court noted that "[s]aving such sur­prises for trial can be unfair to court and counsel, and is sometimes intended to be." Id. See also, Sullivan v. Combus­tion Engineering, 248 N.J. Super. 134, 142 (App. Div. 1991) ("The failure to furnish timely the names of expert witnesses to be called at trial or their reports may, in the sound discretion of

the trial court, result in the exclusion of their testimony. ")

In Ratner, the appellate court held that the trial court abused its discretion when it failed to allow plaintiff's expert's testimony where the plaintiffs attorney was not aware of the content of the testimony until trial. Ratner, 241 N.J . Super. 197 (App. Div. 1990).

The "no surprise rule" fulfills a fair­ness goal. Both sides should be afforded an equal and adequate chance to pr~­pare their rebuttal for the opposing side's experts, an undertaking that cannot be complete or fair without the presentation in advance of trial of the complete substance of the opposing expert's expected testimony . See Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 387 (App. Div . 1990); Mauro, Supra. The court has held that "[t]he purpose of the report is to fore­warn the propounding party of the expected contents of the expert's testimony in order to enable prepara­tion to counter such opinions with other opinion material." Maurio v. Mereck Construction Company, Inc., 162 N.J. Super. 566, 569 (App. Div. 1976).

However, an expert will be allowed to testify on the "logical predicates for and conclusions from statements made in the report," and such testimony is not

foreclosed. McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div. 1987), (citing Hall v. Zuckerman, 202 N.J . Super. 455, 458 (App. Div. 1985).

The Logical Predicates Question

As noted above , the Appellate Division has held that an expert will be allowed to testify about the "logical predicates for and conclusions from statements made" in his report even if those "logical predicates for and con­clusions" are not expressly set forth in the report. McCalla, supra, 215 N.J. Super. at 171. In McCalla, the Appellate Division assigned error to a trial judge for exclusion of the testimony of the defendant's engineering expert witness in a products liability case. Plaintiffs counsel objected when the defendant's expert began to testify at trial as to specific factual data uncovered in his investigation of the product. The defendant's expert's report did not include such data, but was merely a conclusory statement that the product was safe. The trial judge confined the defendant's expert to negating state­ments made by the plaintiff and did not allow him to present any additional testimony as to his own findings . McCalla, 215 N.J. Super. at 164. The Appellate Division reversed and remanded, noting the existence of a "logical predicates for and conclusions from statements" exception to the general rule that an expert will not be allowed to testify beyond the scope of a report. Id . at 171. The court, relying on Hall v. Zuckerman, supra, concluded that the jury should be able to weigh and balance expert opinions on both sides and a strict interpretation of the exclu­sion rule inhibits the jury's ability to resolve the case fairly. Id .

PRACTICAL CONSIDERATIONS If you are attempting to preclude an

expert from testifying beyond a report, you should do the following:

1. Propound an interrogatory pur­suant to R.4: 1O-2(d)(l), tracking the language from the Rule. The inter­rogatory should state:

Set forth the name, address and specific field of expertise of each proposed expert witness, state 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 the summary of the grounds for each opinion and attach true copies of all reports and drafts of reports received from each such expert and from any expert retained by you or your attorneys and expert. 2. In addition to including the lan­

guage required by R.4: 1O-2(d)(l), in propounding interrogatories you may wish to include the following note at the end of the interrogatory:

NOTE: In the event an expert's report(s) is not provided with these answers, but is an amend­ment or supplement to these answers , we will rely upon any reports served as an amendment or as a supplement as being re­sponsive to this interrogatory, unless expressly advised in writ­ing, that it does not apply to this interrogatory.

While such a provision has not been analyzed in any reported cases, insofar as many expert reports are served by mail with a letter indicating that the report constitutes an amendment to the party's answers to interrogatories, this provision may assist in having the trial court view an expert's report served as an amendment to answers to inter­rogatories as being an adoptive admis­sion of a party wh ich will have a limiting effect upon the scope of the expert's trial testimony.

3. If the expert , while testifying at trial, attempts to offer testimony beyond the scope of a report , it is important to articulate to the trial court that you are genuinely surprised by the testimony and more significantly that you have real prejUdice as a result of the admission of the testimony. To prevail in limiting the expert's testimony, the prejUdice demonstrated must go beyond simply asserting that your case is weaker because your adversary's expert has added theories to support your

adversary's case. In addition, to the extent that you can

anticipate that your adversary or the trial court will attempt to "cure" the prejUdice (see below), you should be prepared to argue that as a practical matter the proposed "cure" is not really effective at eliminating the prejUdice.

Creation of a record is important in this context. You may wish to ask for (and the trial court should consider allowing) a hearing outside of the presence of the jury on the circum­stances of the expert now wishing to give testimony beyond his report and also the prejUdice to your case if that occurs.

4. If the expert is allowed to testify beyond the' report, there should be appropriate "punishment" before the jury. While each trial attorney has a different (and individually effective) style of cross-examination, this is one area , particularly with a seasoned expert, in which it might be prudent to "pin" the expert to the report.

Specifically, the questioning should be narrow and precise: Dr. Smith, in your April 8, 1992 report in this case, there was no mention by you of in­formed consent, is that correct? You should press the question until the witness answers it responsively, and concedes that there was no mention in his report of the opinion about in­formed consent hejust gave ten minutes ago .

While your adversary may attempt to rehabilitate the expert by having the expert "explain" why the opinion was injected in the trial at the last moment, in trial work if you are explaining, you are losing. The jury wiU get the message.

On the other hand, if you wish to offer testimony of an expert beyond the scope of her report, you should consider doing the following:

I. Examine the interrogatories pro­pounded upon you by your adversary. If the interrogatory requesting informa­tion on experts is not the proper form which precludes an expert from testify­ing beyond the scope of the report (see above) , argue under Skibinski, supra, that your expert may testify beyond the four corners of the report.

2. If you can argue it with a straight face, assert that the opinions expressed by your expert which your adversary seeks to exclude are simply the "logical predicates for and conclusions from statements made in the report" and accordingly should not be excluded. McCalla, supra, 215 N.J . Super. at 171; Hall v. Zuckerman, 202 N.J. Super. 455,458 (App. Div. 1985).

To the extent that the adversary may be on notice that the theory asserted by the expert was "in the case" all along, either from other discovery such as answers to interrogatories or from informal discussions between adver­s~ries, or because it simply would be obvious to anyone trying a case of the existence of the theory, you may be able to assert that the adversary is not truly surprised .

3. Establish a clear record that the failure to disclose the opinion offered by the expert was inadvertent and was not a sharp litigation practice designed to mislead your adversary. As Justice Clifford has noted in a different context, "Confession of error ... is good for the soul ... " Suter v. San Angelo Foundry & MachineCo.,81 N.J. 150, 179-180 (note I) (1979) (Clifford, dissenting). While the natural reaction of many lawyers may not be to admit errors in handling lawsuits - particularly given the ego of successful trial lawyers - in this context

confession of error is not only good for the soul, but could be essential to pro­tection of the client's interest. Indeed, the failure to acknowledge inadvertence in this context, aside from the obvious ethical requirements of counsel to be candid with the Court and adversary, may be essential to mitigating the problem that counsel has caused for the client by failing to prepare the case properly during the discovery phases.

4. Determine if the opinion offered truly surprises the adversary and if it does, stipulate to steps that would "cure" the surprise. Again, creation of the record may be important in this regard. If the Trial Court appears to be inclined to bar the testimony because it would result in prejudice to your ad­versary, offer to "cure" the specific prejUdice asserted by the adversary.

For instance, request that the Court suspend the trial for the day and offer to produce the expert for depositions during the overnight recess, offer to allow your adversarys to amend their experts' reports to meet the new allega­tion or to retain new experts to meet the allegation, or offer whatever other steps that would "cure" the prejUdice asserted by your adversary.

5. If all else fails and the testimony to be offered by the expert is truly sig­nificant to the prosecution or defense of the case, request that the Trial Court

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grant a mistrial and resched ule the trial at a later time so as to allow your adversary to cure any prejUdice result­ing from the new opinions asserted by the adversary's expert.

Of course, the Court may be inclined to assert sanctions against you to com­pensate the Court and your adversary for the time and expenses incurred during the trial before a mistrial was declared. At the end of the day, all things considered, this may be a small price for the lawyer to pay if in fact his client is at risk of having an expert not give complete testimony because of the lawyer's inattention or inadvertence.

CONCLUSION

At the end of the day, the Court Rules are designed to achieve substantial justice. R.l: 1-2. Here, there is a tension in achieving that goal. On the one hand, the Appellate Division, in this area and in others, has often stated that a litigant should not be disadvantaged because of the inadvertence of his attorney. On the other hand, particularly in more com­plicated civil cases, including those involving medical malpractice and prod uct liability, the assertion by experts of new theories at the time of trial can be prejudicial - and in the lay sense unfair - to the adversary.

Reprinted with permission from the Winter 1992

Sumnuzlion .

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