MBlawg

Last month, the Virginia Supreme Court ruled for the first time regarding the specificity requirement for expert disclosures pursuant to Rule 4:1(b)(4)(a)(i). In John Crane v. Estate of Garland Jones, the Court affirmed a trial court’s exclusion of the defendant’s expert testimony that was not specifically set forth in an expert disclosure. These opinions were excluded even though the opinions were actually discovered by the plaintiff’s counsel in depositions or in their possession from discovery in other similar litigation. Click here for a more detailed summary of the opinion.

In my experience, this is a significant departure from standard practice in Virginia state courts, where parties frequently use the disclosures to put opposing counsel on notice of their expert witnesses’ identity and general opinions. Detailed discovery of expert witnesses has traditionally been reserved for deposition. Now, apparently, an expert will be bound by the four corners of the attorney prepared disclosure, even if opposing counsel explores additional opinions in detail in deposition.

In a recent case, although not required by the rules, we had our expert prepare a detailed report of his opinions and all of the bases for them — in large part due to the complexity of the issues our expert was addressing. I am certainly relieved, in light of this opinion that we chose this method of disclosure, as our trial is approaching later this month and I would hate to have added concern about possible limitations on our expert to our otherwise stressful trial preparation. While it will be a case by case determination, submission of detailed Rule 26 type reports from experts is probably the safest route to prevent a challenge to expert disclosures, at least until we see how trial court interpret Jones in their published and unpublished opinions.

I invite comment on this topic and ideas on how to avoid potential traps that this new opinion might create in complex cases requiring expert testimony.