Considerations for Early Written Expert Discovery

WDC Journal Edition: Summer/Fall 2008
By: Robert D. Ebbe

I. Expert Discovery Issues

In Wisconsin circuit court, the extent to which a party in a civil suit can acquire or protect information about expert witnesses during discovery is still, in many ways, an open question. Individual attorneys approach this issue in different ways, and defense counsel will encounter a wide variety of practices as to what will be provided and when. When disagreements arise in the course of depositions, they requested information gets lost in the immediate demands of the case, or are given up on and never pushed toward an informal resolution. Even when expert discovery disputes are brought to the court, only a small percentage of the decisions ever become published decisions to provide guidance for future cases.

In one sense it not surprising that one of the most common obstacles in civil litigation has the least concrete direction in the law. Courts and counsel recognize that the breadth of Wisconsin’s civil discovery practice will uncover countless factual variations and iterations of expert issues. For example, in discussing the extent of the “work product” privilege on materials relating to retained experts, the Court in State ex rel. Dudek v. Circuit Court of Milwaukee County noted:

As we have seen, which materials will receive the qualified protection of the work product rule depends upon the particular facts, circumstances and issues of the case in light of the policies underlying liberal discovery and the work product rule.[1]

Given this mix of open discovery, a broad diversity of factual situations, and a wide spectrum of individual discovery practices, it is important to devise a plan for expert discovery early in one’s discovery. Written interrogatories and requests for production early in discovery provide an excellent way to narrow issues and efficiently uncover important information about expects who will be at trial. However, the ease of submitting written discovery can sometimes lead to improper or overly broad inquiries about experts. These steps should with consideration both for what you want the rule of the case to be as to what is disclosed, as well as what you want the rule of the case to say about what will not be disclosed. As noted by the Dudek Court:

The keystone of discovery is reciprocity. When the parties are in a similar position, discovery should be encouraged; when they are not so situated, discovery should be conditioned or limited so that the parties may equally obtain the advantages discovery was designed to achieve.[2]

Written discovery is somewhat underused for this purpose, either considered to be improper or ineffective. However, careful and calculated use of written discovery regarding expert testimony can be very helpful in moving discovery forward in an efficient fashion.[3]

II. Summary of Expert Discovery Law

For purposes of this discussion, it is helpful to reference some of the statutes which address discovery of expert witnesses in Wisconsin civil litigation. Section 804.01(2), Stats. identifies the nature of discovery that can be acquired about expert witnesses. Section 804.01(2)(a) identifies the general breadth of discovery:

(a) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.[4]

This is followed by sec. 804.01(2)(d), Stats. which applies that principle to expert witnesses:

(d) Trial preparation: experts. Discovery of facts known and opinions held by experts, otherwise discoverable under par. (a) and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:

1. A party may through written interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subd. 3. concerning fees and expenses as the court considers appropriate.

2. A party may, through written interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only upon motion showing that exceptional circumstances exist under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

3. Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for the time spent in responding to discovery under the last sentence of subds. 1. and 2.; and with respect to discovery obtained under the last sentence of subd. 1., the court may require, and with respect to discovery obtained under subd. 2., the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.[5]

In addition statues regarding the nature and control of cross-examination[6], identifying what evidence can be used for purposes of impeachment[7], outlining the use of interrogatories and requests for production[8], and regarding the use of depositions[9] are also relevant to consider when drafting discovery questions.

Along with these statutes, one must also consider the Dudek decision, clearly one of the more frequently cited cases whenever a dispute on expert discovery arises. The Dudek decision is frequently used to attempt to block expert discovery, even of experts identified as someone to give testimony at trial. The Dudek decisions discussion of “work product” is often quoted in this regard, such as when the Dudekcourt held:

We are not here concerned with a pretrial examination of experts themselves but their reports in the hands of the attorney as a part of his work product. Those portions of experts' reports that are designed only to assist the attorney in preparation of pleadings, in the manner of the presentation of his proof, and cross examination of opposing expert witnesses are clearly a part of the attorney's mental observations and trial strategy and should not be the subject to pretrial discovery, without a strong showing of good cause.[10]

The boundary between “thought process of counsel” and the basis for an expert’s opinion may be hard to determine, particularly early if the case is still in the early stages of discovery. However the Dudekdecision should not be seen as a prohibition or obstacle to written expert discovery. Indeed early written discovery can be tailored to acquire non-privileged information and serve as a basis to monitor an expert’s opinions throughout discovery up to trial.

III. Use of Early Written Discovery

Section 804.01(2), Stats. allows for written discovery about disclosed experts so that (1) counsel can discover the identity of the experts to be called and (2) to discover facts known or opinions held by those disclosed experts[11].

Written expert discovery can inquire into several important topics relevant to issue of that expert’s anticipated trial testimony. Expert discovery can, as noted above, inquire into “opinions” held by that expert and the “facts” known to that expert. Further, written expert discovery can provide counsel with information relevant to the impeachment of the expert at trial. Finally, such discovery can help counsel evaluate whether the expert’s anticipated testimony is of the type that is appropriate for trial at all.

IV. Discovery of “Opinions and Facts” vs. the “Work Product” Privilege

Written discovery is an appropriate vehicle to begin to narrow down the list of what opinions a particular expert is going to be called to give at trial. The Dudek Court recognized that pretrial discovery:

is designed to formulate, define and narrow the issues to be tried, increase the chances for settlement, and give each party opportunity to fully inform himself of the facts of the case and the evidence which may come out at trial.[12]

As noted above, the Dudek decision highlights the conflict between the breadth of pre-trial discovery and the interests protected by the work product privilege. The Dudek court listed a number of instances where the work product privilege should protect against discovery regarding expert consultants:

(1) to protect the mental processes and privacy of attorneys preparing for litigation from unwarranted interference by adverse parties; (2) to prevent laziness in preparation for trial; (3) to encourage diligent investigation of facts and law in anticipation of litigation; (4) to curb sharp practices which may be utilized by unethical lawyers.[13]

However when an expert is actually disclosed as a witness who will provide testimony at trial, these underlying interests become less compelling. Once a witness is identified as an expert witness for trial, “their testimony and reports are subject to a discovery”.[14]

Sometimes the reply to written expert discovery questions is a nonspecific “Wait and ask them at their deposition”. This response may simply reflect an unwillingness to provide information and an assumption that counsel will not push the issue. Indeed this sort of response may ultimately be used to help limit or bar opposing experts. However in positing the discovery in the first place, you should ensure that your question is not so overly broad or nonspecific that it would be impossible or overly burdensome for counsel to actually respond. Consider also that there may be times when the nature of expert’s testimony may make it difficult if not impossible to be fully reproduced in an interrogatory answer. Further written discovery may be circulated early in discovery, before counsel has been able to complete sufficient initial discovery such that their expert is in a position to give a final opinion at the time the written discovery might come due. This is particularly true if the Court has given a disclosure dates for expert reports and the discovery at issue comes due before that date. All of these concerns can be dealt with in drafting the language of your discovery.

The use of written discovery not only serves the overall goals of pre-trial discovery as noted above, but also serves a further important goal for your client: managing costs. Insufficient responses to expert discovery should not be allowed to serve as a means of cost-shifting or as an obstacle to appropriate, efficient discovery. Since a party may be required to pay the deposition fees of the opposing party’s expert[15], information readily in the control of opposing counsel should not be hidden behind the obstacle of increased costs if that information cannot be acquired until deposition. Indeed pre-deposition expert discovery should be tailored to help reduce the time and expense of deposing the opposing party’s expert.

Tailor your written expert discovery to target information that relates to the opinions to be given in the case and the “facts” that expert witness is aware of and thus avoid Dudek’s work product justifications. Questions aimed at identifying the opinions the expert is going to be called to provide essentially by definition exclude work-product materials. Factual information made known to an expert is not cloaked from discovery merely because it was provided by the attorney in the context of initial discussions about the case before the decision on disclosure or because it may be within letters from the attorney to the expert detailing the nature of the case. Draft your discovery so that you have questions that can clearly be answered immediately (i.e., request for a CV, general subject matters about which the expert will testify) separated from those which counsel might legitimately claim that cannot be answered until later (i.e., what materials the expert has reviewed, copies of draft reports).

Also keep in mind that the actions and representations of counsel may serve as a waiver of what might otherwise be protected as work product.[16] Written discovery tailored to prior agreements of counsel, or in turn may be used to limit what an expert is going to be allowed to testify to given the representations of counsel in written discovery answers.

V. Discovery for Impeachment vs. Discovery of Admissible Evidence and Burden

Besides information regarding the nature of the opinions from an expert, written discovery can serve the purpose of acquiring information relevant to impeaching the expert’s testimony at trial. The Rogers v. State of Wisconsin Court, for example, generally outlined appropriate types of “impeachment” evidence:

The first, and probably the most effective and most frequently employed, is an attack by proof that the witness on a previous occasion has made statements inconsistent with his present testimony. The second is an attack by a showing that the witness is biased. . . . The third is an attack upon the character of the witness. The fourth is an attack by showing a defect of capacity in the witness to observe, remember or recount the matters testified about. The fifth is proof by other witnesses that material facts are otherwise than as testified to by the witness under attack.[17]

Even when aimed toward one of these issues the probative value for impeachment of the information may be outweighed by issues of prejudice, the burdensome nature of the request, or the risk of juror confusion and the waste of the Court’s resources. Written discovery can be used to flush out disputes early in the process and then allow counsel to build a record to support their requests through further discovery.

Typical “impeachment” questions about an expert may include the number of times that expert has testified for a particular law firm, the nature of the expert’s background and practice, and the compensation they are earning from a particular case or in litigation in general. There is little in the way of concrete direction in Wisconsin case law as to how far any of these questions may go. While this often turns on the facts of the individual case, there are cases which discuss the nature of impeachment which may provide some guidance when considering written expert discovery.

In the Nowatske v. Osterloh case, plaintiffs in a medical malpractice action sought review of a trial court’s ruling that plaintiffs’ medical expert could be impeached by evidence that he had been a defendant himself in two prior malpractice claims.[18] The Court held that there was no connection between the expert’s role as a defendant in prior cases and the truthfulness of his opinions in the present case.[19] The Court held that since the evidence did not go to the expert’s “reputation for truth and veracity” under sec. 906.08, Stats, such evidence was inadmissible.[20]

In addition, attempting to connect diverse or distant events in an expert’s background to their opinions may be so involved or complex that the very attempt would result in jury confusion, undue delay or waste of the court’s resources.[21] Under the scenario presented in the Nowatske decision, trying to link past malpractice claims of a witness to the particular lawsuit would involve a “trial within a trial” where the events of the prior claims would essentially have to be re-litigated in order to establish some tenuous connection to the current case. Such a “trial-within-a-trial” evaluation would take up considerable time and resources and risk confusing the jury as to what action they were really decided. Impeachment evidence that would require such extended evidence to make the narrow connection toward impeachment is highly disfavored and unlikely to be admissible at trial.

The Rogers decision, while in the context of a criminal case, provides another example of how courts evaluate what is proper impeachment. In Rogers the defendant wanted to impeach a witness by cross-examining the witness about the witness’ failure to appear to testify at the first two scheduled trial dates.[22] The Court held that the failure of the particular witness to come to trial did not alone show the tendency to lie or fabricate, as encompassed by sec. 906.08, Stats.[23] In addition, the Court considered it important that the Defendant did not show that the proposed testimony would even serve to “impeach” the witness because the defendant “has advanced no reason or motive for [the witness] to falsify his testimony.”[24] As another example, Wisconsin courts have found that the extent of a witness’ medical library is not relevant toward impeaching that knowledge and arguing their medical care was negligent.[25]

Any expert discovery aimed to uncover issues for impeachment can be evaluated by cases like Rogers and Nowatske which help outline what a court will consider proper impeachment at trial. On the issue of bias and veracity, however, the information cannot be too distant in time, complex in nature, or dense in factual specifics such that juror confusion and court resources will be taxed to make what is almost always a minimal point. Further there should be a clear connection between the background information and the veracity of the witness’ likely testimony. If the background information does not provide the court with a “reason or motive” for the expert witness to be deceitful in the particular case, then a strong argument can be made that the information is not admissible nor likely to lead to the discovery of admissible evidence.

Again, this analysis will often turn on the facts of the particular case. Written discovery on these points, particularly on the question of bias, should be carefully tailored to avoid appearing burdensome and confusing, as well as directed toward a specific, logical reason or motive that would tend to show bias.

VI. Discovery of Opinions and the “Gatekeeper” Function

Under Wisconsin discovery law, the court has only a minimal “gatekeeper” function in determining whether a particular expert may opine at trial. However while minimal, in comparison to Federal courts, the “gatekeeper” function is still quite important. As described by the Court in Green v. Smith & Nephew AHP, Inc., Wisconsin courts’ “gatekeeper” function can be summarized as:

Unlike in the federal system, where the trial court has a significant “gatekeeper” function in keeping from the jury expert testimony that is not reliable...the trial court's gatekeeper role in Wisconsin is extremely limited:

The rules in regard to the admission of expert testimony are also clear. The Wisconsin Rule of Evidence, sec. 907.02, Stats., Testimony by experts, provides that, if scientific or specialized knowledge will assist the trier of fact to determine a fact in issue, a qualified expert may testify. As the commentary to Rule 907.02 points out, under Rule 907.02, expert testimony is admissible if relevant and will be excluded only if the testimony is superfluous or a waste of time.[26]

In other words, written discovery may serve the appropriate purpose of identifying the nature of the expert’s opinions so to allow the parties, and the Court, to evaluate if the opinions meet the requirements of sec. 907.02, Stats. for there to be expert testimony on the topic at all.

VII. Expert Discovery and Identification of Experts for Trial

The direction of sec. 804.01(2)(d)1, Stats. that written discovery may be used to identify experts who are going to testify at trial is often dealt with by Court ordered expert disclosure deadlines under the scheduling order. The effect of the scheduling order, counsel’s duty to comply with the dates set in the Order, and the burden a party must meet in order to seek relief from any missed deadline are all tools that can be used to ensure that counsel knows what experts will or will not be called by opposing counsel at trial.

However written discovery still serves an important purpose in this regard when it comes to the “kitchen sink” disclosure that is most frequently seen with disclosures of treating health care providers, for example. It is not uncommon to see an expert disclosure like “Any and all treating health care providers of the Plaintiff” or “any and all staff at ABC Hospital who provided care to or were otherwise involved in the care provided to Plaintiff”. The presence of a “kitchen sink” disclosure does not mean there is intent to obfuscate. Discovery sometimes is unable to keep pace with the court-ordered deadlines and a party may simply not know all of what each provider may or may not say. However this does not change the fact that counsel has the need and right to know who they are going to see called as an expert witness. In turn courts face the dilemma of not unfairly limiting one party from presenting their testimony while on the other hand ensuring the other party be able to get the information necessary to evaluate and defend against that testimony assuming they ask for it.

Written discovery asking a party to identify, specifically, who they actually intend to designate in their “kitchen sink” disclosure sharpens the duty on the disclosing party to clarify their designation. Written discovery imposes the obligation on the disclosing party to provide more information or to concede that they are not in a position to do so. It puts the opposing party on notice that the “kitchen sink” disclosure is not sufficient and that counsel is, in fact, seeking a more specific designation. Finally it gives counsel a formal basis to take the narrow issue to the Court, should informal attempts at resolution fail, early in the discovery process.

VIII. Conclusion

Written discovery is an appropriate vehicle for discovering information about anticipated expert testimony and about the expert giving that testimony. The extent and nature of what will be appropriate discovery will vary with the case and the particular expert. Written discovery is a helpful way to try to narrow down issues relating to opinions, facts known and the expert’s background. Such discovery should be evaluated in the context not only of what the expert will testify about at trial, but also what is the appropriate for expert testimony in the first place. Impeachment of an expert is also an appropriate purpose of written discovery, but should be tailored to confines of what has a direct, clear connection to calling the expert’s testimony into question. Written discovery should be the first step in narrowing down discovery issues so that discovery may continue efficiently and fairly. Counsel should be ready to face discovery and discovery responses that reflect the discovery and responses they themselves provide.

[1]State ex rel. Dudek v. Circuit Court of Milwaukee County, 34 Wis. 2d 559, 150 N.W.2d 387 (1967).

[2] Dudek, 34 Wis.2d at 600 (citing Long, Discovery and Experts, 38 F.R.D.111, 153-154).

[3] This article will focus on discovery issues related to witnesses who are, or will be, designated as experts who will be giving testimony at trial.

[4] sec. 804.01(2)(a), Stats.

[5] sec. 804.01(2)(d), Stats.

[6] sec. 906.11, Stats.

[7] sec. 906.08, Stats.

[8] sec. 804.08-.09, Stats.

[9] sec. 804.07, Stats.

[10] Dudek, 34 Wis.2d at 597-598.

[11] Sec. 804.01(2)(a), (d)1 and (d)2, Stats.

[12] Dudek, 34 Wis.2d at 576.

[13] Dudek, 34 Wis.2d at 598.

[14] Hallidin v. Peterson, 39 Wis.2d 668, 675-676, 159 N.W.2d 738 (1968).

[15] Sec. 804.01(2)(d), Stats.

[16] See, e.g. Blakely v. Waukesha Foundry, Co., Inc., 65 Wis. 2d 468, 222 N.W.2d 920 (1974) (holding that an initial agreement to exchange consultant reports stood as a waiver of subsequent reliance of the work-product privilege).

[17] Rogers v. State of Wisconsin,, 93 Wis.2d 682, 689-690, 287 N.W.2d 774 (1980)(citations omitted).

[18] Nowatske v. Osterloh, 201 Wis.2d 497, 549 N.W.2d 256 (Ct.App. 1996).

[19] Nowatske, 201 Wis.2d at 505.

[20] Nowatske, 201 Wis.2d at 505-506.

[21] Sec. 904.03, Stats.

[22] Rogers, 93 Wis.2d at 690-691.

[23] Rogers, 93 Wis.2d at 690.

[24] Rogers, 93 Wis.2d at 691.

[25] Shier v. Freedman, 49 Wis. 2d 41, 45-46, 181 N.W.2d 400 (1970).

[26] Green v. Smith & Nephew AHP, Inc., 238 Wis.2d 477, 497, 617 N.W.2d 881 (Ct.App. 2000)(citations omitted) .