One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.
I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:
The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.
Thus, because a plaintiff ordinarily has the burden of proof on liability, causation, and damages, plaintiff will have to disclose expert witnesses on these issues first. However, to the extent that the defendant asserts an affirmative defense (and thus assumes the burden of proof on that issue) the defendant has will have to disclose expert(s) on the affirmative defense at the same time the plaintiff discloses experts.
Then, sometime later (I would suggest 30 days) the party without the burden of proof on an issue must respond to the expert proof offered by the opponent by disclosing any expert he, she or it wishes to disclose on the issue. This disclosure may well include a supplemental disclosure of an expert disclosed in the initial round of disclosures.
So what happens in a car wreck case when the defendant pleads the comparative fault of the plaintiff? To the extent that they both have accident deconstructionists, both would have to disclose at the same time. Why is that fair? Because both have the burden of proof – the plaintiff on her claim and the defendant on her affirmative defense. Plaintiff may well determine that no expert is necessary, and thus the defendant should be required to disclose her expert first. If plaintiff decided to get an expert after seeing defendant's disclosure the second deadline would have to be met by plaintiff. To the extent they each disclose an expert and the one party’s disclosure gives rise to a new issue not addressed in the opponent’s disclosure, the disclosure should be supplemented no later than the date for “rebuttal experts” stated in the scheduling order.
As indicated above, I think this is an eminently fair way to handle expert witness disclosures. It permits each party without the burden of proof on an issue to see the expert witness disclosures of the opponent before preparing his, her or its own disclosures. It does not force a party without the burden of proof to disclose experts without a clear understanding of the opponent’s expert proof. To the extent there are simultaneous disclosures of experts on the same issue, the responses can be supplemented to prevent surprise.
I encourage all lawyers to use this language (or something substantially similar) in all scheduling orders and to send me a signed copy of the order. I will collect these orders and make them available to anyone who asks for a copy so that these can be used to persuade judges who have not faced the issue before to incorporate this language into scheduling orders. With a concerted effort, this language will become routine in scheduling orders within five years.