(1) Do you require plaintiffs to disclose their expert reports before defendants do, or do you require the parties to make the disclosures simultaneously?
Salinger, J.: If plaintiffs are the only parties with a burden of proof at trial, I usually require them to make their expert disclosures first, with rebuttal disclosure of defendants’ experts to follow. If there are counterclaims or if for some other reason defendants also have a burden of proof, I usually require simultaneously initial and rebuttal expert disclosures.
Krupp, J.: In a case where the parties have equal knowledge of the issues, e.g. a case that turns on contract interpretation, or in cases where both sides are bringing claims, simultaneous initial expert disclosures make sense, followed by simultaneous rebuttal expert disclosures. Otherwise, plaintiff will ordinarily make its expert disclosure first followed by defendant’s disclosures.
Kazanjian, J.: I follow the same practice as Judge Krupp.
Ricciuti, J.: Same as Judge Salinger.
(2) How detailed do you require expert disclosures to be?
Salinger, J.: Detailed enough to give the opposing parties fair notice of the subject matter on which any expert is expected to testify at trial, the substance of their expected opinions and other testimony, the grounds for each of the expert’s opinions, and the nature and basis for the witness’s expertise. There should be no surprises about the scope of an expert’s testimony.
Krupp, J.: Expert disclosures should describe in detail the expert’s qualifications, opinions and bases for those opinions. Any party calling an expert must understand that opinions and the bases for those opinions that are not fairly disclosed in the expert disclosures, including the expert’s report(s), are likely to be excluded at trial.
Kazanjian, J.: Expert disclosures must describe the expert’s opinion in sufficient detail to give the opposing party fair notice of the opinion and the basis for the opinion, and a fair opportunity to cross-examine. I will exclude testimony that goes beyond a fair reading of the substance of the disclosure if I feel that the opposing party is prejudiced.
Ricciuti, J.: I generally follow the same approach as in medical malpractice cases – that if the disclosure did not give adequate notice of the subject matter on which any expert is expected to testify at trial, the substance of their expected opinions and other testimony, the grounds for each of the expert’s opinions, and the nature and basis for the witness’s expertise, it is subject to exclusion.
(3) Do you usually permit expert depositions? What are your considerations in determining whether an expert may be deposed?
Salinger, J.: Parties usually reach agreement as to whether they want to depose expert witnesses. If there is a dispute, the party seeking to depose an expert must show that doing so is needed to obtain information to cross-examine the expert and will likely streamline the presentation of the case at trial.
Krupp, J.: The parties can, and often do, agree to expert depositions. Obviously, a potentially unavailable expert may be deposed to preserve the expert’s testimony at trial. Expert depositions are also useful if the expert disclosures are ambiguous or not comprehensive, to mitigate prejudice if the expert is disclosed late, where the proposed expert testimony is novel, if there is a meaningful challenge to an expert’s qualifications, or when a deposition may help to resolve the case.
Kazanjian, J.: My hope is that the parties can reach agreement about whether expert depositions would be warranted either to clarify issues or preserve testimony. I am not opposed to ordering expert depositions if it would serve to narrow or expedite issues.
Ricciuti, J.: Same as Judge Salinger, although I expect the showing to be made in the event of dispute to be convincing as to why the disclosure is inadequate
| Date published: | April 1, 2022 |
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