WHAT’S NEW?, 18 VTBJ, Summer 2018-#24

AuthorAllan Keyes, Esq. & James Dumont, Esq.
PositionVol. 44 2 Pg. 24


Vol. 44 No. 2 Pg. 24

Vermont Bar Journal

Summer, 2018

Expert Witness Disclosure in Vermont – The Advisory Committee On Civil Rules Seeks Your Input

Allan Keyes, Esq. & James Dumont, Esq.

The Advisory Committee on Civil Rules has proposed a revision to V.R.C.P. 26 (b) (4), concerning expert witness disclosure. The Committee seeks more input from the bar on this proposed rule. A copy follows this article.

The purpose of the Vermont Rules of Civil Procedure is to secure the just, speedy an inexpensive determination of every action.1 Rules of procedure should not be pitfalls for the unwary, which would defeat justice; nor should they impose unnecessary procedures and documentation, which would delay and increase the cost of litigation.

The rules governing pretrial discovery of expert witness testimony implement this purpose by ensuring fair notice to litigants of an expert’s testimony, enabling litigants to decide whether it is necessary to depose the expert, and, if so, to prepare for the deposition.2

Vermont initially followed the federal rules governing expert witness disclosure, when the Vermont rules were adopted in 1971. In 1993, however, a major change was made to the federal rule that was not followed in Vermont – the requirement that expert witnesses provide a report. The federal rule now requires a report from any expert witness “if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly in-volve giving expert testimony.” Any other witness who will provide opinion testimony under Rules of Evidence 702, 703 or 705 must be disclosed, and a summary of their facts and opinions must be provided, but no report from the witness is required. Counsel can provide the summary.

The federal change was part of a broader imposition of mandatory duties of disclosure that do not hinge on discovery requests. Vermont has never adopted the requirement of a report or the broader requirement of automatic disclosures.

Vermont continues to rely on expert witness disclosures, by counsel, in response to interrogatory. The interrogatory may ask for the subject matter of the expert’s testimony, the substance of the expert’s facts and opinions, and a summary of the grounds for each opinion.3

In Vermont, the question of whether to follow the federal automatic expert witness report requirement has arisen in the context of a wider question – must there be any disclosure, regardless of whether by statement or by report, when the expert is a so-called “event witness.”

An event witness is an expert whose knowledge and opinions arose from participation in an event, as distinguished from a witness hired to testify. A common example is the treating physician. The Advisory Committee has long had a consensus that the goal of fairness requires...

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