Supreme Court Tightens Expert Witness Designation Requirements

Published on: 2/07/2008

A crucial stage in many litigated cases occurs when the parties identify their expert witnesses and designate the opinions these experts are expected to render at trial.  Typically, this step happens within a few months of trial.  A recent decision from the Virginia Supreme Court emphasizes how important it is for lawyers to disclose fully an expert's opinions and how he or she has arrived at them.

The case at issue, John Crane, Inc. v. Jones, involved an employee at the Newport News Shipbuilding and Dry Dock Company who died of mesothelioma, a fatal cancer in the lining of the lungs which is caused by exposure to asbestos dust or fibers.  Through the course of discovery, plaintiff's counsel sent an interrogatory to defense counsel requesting standard information concerning expert witnesses and their opinions.  The defendant identified an expert named Dr. Roggli, providing a broad and generalized description as to what his opinions would be and incorporating a report from him containing the results of the doctor's examination of tissue samples taken from the plaintiff's lungs.  Nothing in the report or the written designation, however, contained any reference to levels of asbestos in the ambient air.  The plaintiff's counsel took the expert's deposition during discovery. 

At trial, the judge sustained the plaintiff's objection to Dr. Roggli's testimony regarding his opinion on the amount of asbestos in the ambient air and its relationship to the cause of mesothelioma because the defense had not disclosed this opinion before trial.  The defense argued, to no avail, that even if the designation had been somewhat insufficient, this error was cured by the plaintiff's ability to depose Dr. Roggli.  The Supreme Court agreed with the lower court, holding, "A party is not relieved from its disclosure obligation under the Rules simply because the other party has some familiarity with the expert witness or the opportunity to depose the expert." 

The Supreme Court did not stop there.  The defendant had also identified another expert, a person named Henry Buccigross.  In its expert witness designation, the defendant referred to a report from this witness of his testing on various asbestos installation products.  The problem was that the lawyer did not attach the report.  The plaintiff argued, and the trial court agreed, that the expert should not be allowed to testify because the report had not been disclosed. On appeal, the defendant argued that the expert should not have been prohibited from testifying because the plaintiff had an opportunity to depose him prior to trial, but had failed to do so.  The Supreme Court rejected this argument, agreeing with the trial court that the witness should not have been allowed to testify because the plaintiff had not received his report before trial.

This decision has sent shock waves throughout the Virginia legal community.  The Supreme Court has now clearly ruled that lawyers will not be able to get away with shoddy, incomplete and overly generalized expert witness designations.  This decision provides lawyers with additional ammunition to have court's strike experts whose opinions and the underlying support for them have not been fully disclosed in a timely manner.   Here at Sands Anderson, we have already seen trial court judges strictly enforcing the mandates of this decision, much to the chagrin of unprepared lawyers on the other side of our cases. 

If you would like a complete copy of the opinion or would like to discuss its implications, feel free to call the author at 804-783-7218.  

(This article first appeared in The Retail Review, January-February 2008, from the Virginia Retail Merchants Association.)




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