When designating an expert witness in federal court in Mississippi, a lawyer must take into account the requirements of the Federal Rules of Civil Procedure, the Local Uniform Civil Rules for the Northern and Southern Districts of Mississippi, and the Federal Rules of Evidence.
Which witnesses must be disclosed as experts?
Those three rules of evidence set forth the circumstances under which a person may offer expert testimony, as well as the scope of that testimony.
If the witness is expected to testify at trial and offer expert opinions, the witness must provide a written report containing the information stated below in this post.
A note about Rule 701, F.R.E. This rule allows a lay witness to offer opinion testimony if that testimony is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
There is no hard and fast test to determine when the testimony of a witness moves out of the ambit of Rule 701 and into that of Rule 702.
For example, in Soden v. Freightliner Corp., 714 F.2d 498 (5th Cir. 1983), the Fifth Circuit permitted a lay witness to offer his opinion that the design of a fuel system was unreasonably dangerous and was the producing cause of a fire.
It is not very difficult, however, to picture a different court drawing a different conclusion. When in doubt, designate the witness as both an expert and lay witness.
The expert must produce a written report.
Pursuant to Rule 26, Fed.R.Civ.P., unless otherwise stipulated or ordered by the court, the expert disclosure must be accompanied by a written report, and the report must be prepared and signed by the witness,
The requirement of a written report applies to (i) an expert retained or specially employed to provide expert testimony in the case and (ii) a party’s employee whose duties regularly involve giving expert testimony.
Pursuant to Local Rule 26, a written report is “prepared and signed” by the expert witness when the witness executes the report after review.
What must the written report contain?
Rule 26, Fed.R.Civ.P., requires all of the following in the report:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition;
(vi) a statement of the compensation to be paid for the study and testimony in the case.
Witnesses Who Do Not Provide a Written Report.
A witness can be an expert and, at the same time, not be either (i) an expert retained or specially employed to provide expert testimony in the case or (ii) a party’s employee whose duties regularly involve giving expert testimony. An example is a treating physician. Another would be a party’s employee whose duties do not regularly involve giving expert testimony.
If the witness is not required to prepare a report, the party designating the witness must nevertheless disclose in writing:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.
Local Rule 26 echoes this by stating:
A party must designate physicians and other witnesses who are not retained or specially employed to provide expert testimony but are expected to be called to offer expert opinions at trial. No written report is required from such witnesses, but the party must disclose the subject matter on which the witness is expected to present evidence under FED.R.EVID. 702, 703 or 705, and a summary of the facts and opinions to which the witness is expected to testify.
Materials that need not be produced.
Fed.R.Civ.P. 26 places some material outside the scope of what must be produced.
Specifically, the following are protected from disclosure and discovery:
• Drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
• Communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
Be careful and thorough. An incomplete disclosure and/or report can result in the exclusion of the witness.
Panter Law Firm, 7736 Old Canton Road, Suite B, Madison, MS 39110