Section 13.37 Use of the Nontestifying Expert

• Library: Sources of Proof (2014 Ed.)

The role of experts is not limited to providing testimony at trial. An expert may be consulted for an informal review of a case or to assist in understanding technical issues. In addition, an attorney seeking an expert to support a particular theory may find that experts disagree on technical issues or interpretation of the facts. This may lead to consultations with experts who do not agree with the advocate’s theory of the case. When any of these apply, the question arises as to whether the opposing party can discover the expert and the expert’s opinion.

Rule 56.01(b)(4) deals with the discoverability of expert opinions. The Rule states that:

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Rule 56.01(b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(a) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial . . . and to state the general nature of the subject matter on which the expert is expected to testify . . . .

(b) A party may discover by deposition the facts and opinions to which the expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time such expert is deposed.

But not all experts can be discovered under Rule 56.01(b). For a nonretained expert to fall under the Rule, the expert must be a witness “whom the other party expects to call at trial who may provide expert witness opinion testimony.” Rule 56.01(b)(5); State ex...