Turning the Tables: Non-Retained Experts for Defendants.

FOR most litigators, first exposure to the concept of non-related experts comes through treating physicians or first responders who examined or investigated an accident. Plaintiff attorneys routinely designate these individuals as experts as a method of limiting litigation costs while surviving dismissal challenges based on a lack of expert testimony.

Defendants in product liability cases--particularly cases involving life sciences products--have been slower to implement this practice. Rather, defendants generally develop their case strategy around engaging and employing traditional retained experts. While these experts are useful in defending against claims of specific causation, their opinions and testimony are frequently largely devoted to more general issues like product design, engineering, and regulatory matters. These general opinions are useful tools in the defense of the case, but they come at a price. Retained experts who convey these opinions carry baggage such as biases and expensive fees--fees that can be great in the mass tort context and almost cost prohibitive in smaller "one-off" cases.

Just like the treating physicians, product manufacturers have a bench of experts with front-line, ground-level involvement with the product who, by the nature of their positions, have spent years developing first-hand, fact-based opinions about the product's safety. While these employee-experts, also known as non-retained experts, come with a natural loyalty and a bias to stand behind the product, they can present opinion testimony with little additional cost. In fact, many of these same professionals may already be filling the role of the corporate 30(b)(6) representative during fact discovery, and some may be the best face for the company to sit at counsel table during trial.

Potential non-retained experts range from the patent holder or chief designer of the product to the company's regulatory affairs specialist who navigated the regulatory process to get the product to market. Although traditional retained experts can testify about the underlying studies or strategies used to support the product, non-retained experts provide first-hand opinion testimony about what they actually did, saw, or thought as the study was being performed. This front-line experience can tip the scale as much or more than a traditional retained expert. While the bias to defend the product or company might be a line of attack for a non-retained expert, most juries expect that degree of loyalty, and it can be countered by the passion the expert brings to defend their product. Employees are generally proud of their work, and when a product they worked on is the focus of litigation, there is natural buy-in and "skin in the game" that bolsters their passion and credibility--something that cannot be replicated by traditional retained experts.

1. Who are Non-Retained Experts?

   The rules and case law involving retained experts is generally well-established, but the same is not always true with respect to non-retained experts. Non-retained experts exist in a grey area; they are hybrid experts who have knowledge of the underlying facts but can offer opinion testimony because of their specialized knowledge. Their opinion testimony, however, is generally limited to "opinions that were formed during the course of their participation in the relevant events of the case, and only to those opinions which were properly disclosed." (1)

   Federal Rule of Civil Procedure 26 addresses disclosure requirements for experts. For witnesses who are "retained or specifically employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony"--i.e., traditional retained witnesses--the parties must submit a comprehensive report containing a complete statement of all opinions to be offered, the basis for the opinions, and the facts or data supporting the opinions. (2) The rules also require thorough statements regarding the witness's qualifications, public-cations and compensation information. (3) These reports can be extensive, and producing reports meeting these requirements can be costly in product liability cases.

   The rules...