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Designation of Expert Witnesses in Mississippi

Jan 17, 2017
Expert Witnesses in Mississippi

Expert Witness

In Mississippi state court, a party to a lawsuit may obtain facts known by, and opinions held by, an expert who will testify for the opposing party at trial.

1. If the expert was retained or specially employed to provide expert testimony, a party can find out the following information:

(i) the subject matter on which the expert is expected to testify;

(ii) the substance of the facts and opinions to which the expert is expected to testify;

(iii) a summary of the grounds for each opinion;

(iv) the facts or data considered by the witness in forming the opinions, regardless of when and how the facts or data were made known to the witness;

(v) any exhibits that will be used to summarize or support the opinions;

(vi) the witness’s qualifications, including a list of all publications authored by the witness in the previous ten years;

(vii) a list of cases in which, during the previous ten years, the witness testified as an expert at trial or by deposition; and,

(viii) for retained experts, a statement of the compensation to be paid for the study and testimony in the case.

2. If the expert was not retained or specially employed to provide expert testimony, a party can obtain:

(i) the subject matter on which the witness is expected to present expert testimony; and

(ii) a summary of the facts and opinions to which the witness is expected to testify.

The method for obtaining the information.

Rule 26 of the Mississippi Rules of Civil Procedure allows a party to obtain this information by using an interrogatory. An interrogatory is simply a written question.

The rule also allows a party to seek a court order to take the deposition of the expert under oath. If the court grants the motion, in most instances the party taking the deposition will pay the expert’s fee in giving the deposition.

It has become commonplace for lawyers to simply agree to a deposition of an expert, with the other side paying the expert’s fee.

Non-testifying expert witnesses.

A party may also discover facts known or opinions held by an expert hired by the other party but who will not testify at trial. But, to do so, the party seeking discovery must show “exceptional circumstances.” This means that it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

The impact of the Uniform Circuit Court and Chancery Court rules.

Rule 1.10 of the Uniform Chancery Court rules states that, absent special circumstances, a party must designate his expert witnesses at least sixty days before trial. Uniform Circuit Court Rule 4.03 (formerly Rule 4.04) says the same thing.

So, what happens if a party does not attempt to discover information about the other side’s expert under Rule 26? Does the other side still have to designate his experts pursuant to the Uniform rules?

The Mississippi Supreme Court addressed this very question in City of Jackson v. Perry , 764 So.2d 373 (Miss. 2000).

In that case, the defendants objected to the plaintiff’s expert witnesses testifying at trial. The defendants relied upon Uniform Circuit Court Rule 4.04 (now Rule 4.03) and argued that the plaintiff had failed to designate expert witnesses at least 60 days before trial.

The Supreme Court explained:

“The City’s reliance on Rule 4.04 is misplaced. Rule 4.04 does not stand alone. In order for there to be a violation of a discovery request, there must first be a discovery request. Here, neither party made a discovery request pursuant to Rule 26(b)(4) of the Mississippi Rules of Civil Procedure….There was no violation of Rule 4.04 because there was no discovery request pursuant to Rule 26(b)(4).”

Dollars v. State

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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