Testifying Expert Witnesses in Wake of Cashman Decision, 1216 RIBJ, RIBJ, 65 RI Bar J., No. 3, Pg. 7

Author:Jackson Parmenter, Esq. Kelly & Mancini, P.C. Providence
 
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Testifying Expert Witnesses in the Wake of the Cashman Decision

Vol. 65 No. 3 Pg. 7

Rhode Island Bar Journal

December, 2016

          November, 2016

          Jackson Parmenter, Esq. Kelly & Mancini, P.C. Providence

         Michael A. Kelly, Esq. Kelly & Mancini, P.C. Providence

         The Rhode Island Supreme Court recently issued a decision which drastically changed what many Superior Court practitioners believed to be the scope of discovery relative to testifying experts. In Cashman Equipment Corporation, Inc. v. Cardi Corporation, Inc., et al. No. 2014-284-M.P., the Supreme Court held that all documents, regardless of whether they are relied upon or considered by a testifying expert, are shielded from discovery. In furtherance of this position, the Supreme Court noted that Rule 26(b)(4)(A) of the Rhode Island Superior Court Rules of Civil Procedure is “clear and unambiguous” in that it “does not provide for the disclosure of documents.” The Supreme Court went on to note the only permitted avenues of discovery with respect to testifying experts are interrogatories and depositions. Understandably, this decision has caused some consternation for practitioners who routinely engage testifying experts and who routinely exchange expert documents.

         The underlying Superior Court action in Cashman, involves a multitude of complex engineering issues related to the design and construction of the newly-erected Sakonnet River Bridge connecting Portsmouth to Tiverton. One of the foremost issues to be decided is whether certain repairs to the Sakonnet River Bridge were necessitated as a result of design defects or construction defects. Cardi Corporation Inc., as the general contractor on the bridge project, argued the repairs were necessitated due to allegedly defective construction by its subcontractor. Whereas Cashman Equipment Corporation, Inc., as the subcontractor, argued the defective design of certain bridge elements necessitated the repairs. Given this complex engineering issue, among others, the respective parties retained testifying experts and exchanged expert reports, the disclosure of which is not required or even contemplated by Rule 26. Cardi’s expert report relied upon computer modeling of the as-built marine cofferdams, the form system into which concrete is poured to form the bridge’s marine pier caps. In the wake of that exchange, Cashman requested, by way of subpoena, all documents (less core attorney work product) considered by Cardi’s testifying expert in formulating his ultimate opinion, not just those relied upon. In relevant part, Cashman’s subpoena requested, among other things, that Cardi’s testifying expert produce the following: [a]ny and all computer models, inclusive of all text input data, created by you and/or relied upon by you which form the basis for the opinions set forth in your expert report dated January 15, 2014 regarding the marine cofferdams. More broadly, Cashman’s subpoena requested the following: [a]ny and all documents and things relating in any way to the Project, and/or relating to your expert reports regarding the cofferdams and Type F concrete regarding the Project, including but not limited to (a) models, mockups, samples and tested objects or materials and (b) electronic and paper document files, including but not limited to correspondence, letters, emails, telecopies, contracts, proposals, agreements, minutes, books, papers, records, reports, diaries, statements, questionnaires, schedules, programs, data, calendars, graphs, charts, transcripts, tapes, recordings, photographs, videos, ledgers, worksheets, summaries, digest and all other information of data, records or compilations, calculations, including all underlying supporting or preparatory material now or ever in your possession, custody or control, or available to you, your counsel, accountants, agents, representatives, associates, or co-workers, from whatever source obtained, however produced or reproduced, whether in draft or otherwise, whether sent or received, or neither, and including all originals and copies thereof.

         After Cardi’s testifying expert refused to produce materials beyond those specifically relied upon, Cashman motioned the Superior Court to compel production. After hearing, the Superior Court reluctantly denied Cashman’s request for materials beyond those specifically relied upon by Cardi’s testifying expert, noting the following: If the Court were writing on a clean piece of paper there is no question but that the Court, at least based on my reading and the arguments presented and the papers presented by the par ties, would order the production…. However, the Court is constrained to deny the motion.1

         Accordingly, the specific question raised by the writ in Cashman was whether, under Rule 26(b)(4)(A), an adverse party is entitled to all materials considered by a testifying expert or whether discovery is limited to just those materials relied upon by the testifying expert in rendering its final opinion. Importantly, the petitioner was careful to note it was not seeking any core attorney work product – information which is decidedly protected under Rhode Island law.2

         In its existing state, Rule 26(b)(4)(A) provides as follows: 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, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion. A party may depose any person who has been identified as an expert expected to testify when the expert interrogatory has been responded to by the other party. Unless otherwise ordered by the court, the party seeking to depose the expert shall pay the expert the reasonable fee for the time spent attending the deposition and the reasonable expenses incurred in attending the deposition. In the absence of agreement between the parties as to the timing of disclosures required under this subdivision, any party may apply to the court for an order establishing a schedule of such interrogatories, responses, and depositions. Obligation to respond to interrogatories shall be stayed until the ruling on the application.3

As the petitioner, Cashman argued that Rule 26 should be read broadly to foster the truth seeking mission of the Court. Cashman argued that considered materials are as important, if not more important, than those materials specifically relied upon by a testifying expert: Documents considered but rejected by the testifying expert in reaching opinions may be equally necessary for effective cross-examination....

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