Can “Consulting” Experts Have To Testify In Certain Circumstances?

The role that experts serve in first-party property claims is an important and vital one. Engineers and damage consultants are often needed to establish the extent of damages repair protocols. Those called to testify are known as testifying experts. There is another type of expert that the law recognizes: “consulting” experts. Consulting experts are retained to help prepare a case for trial and are not expected to be called to testify.

The Federal Rules of Civil Procedure state that:

Ordinarily, a party may not, by interrogatories or 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 to prepare for trial and who is not expected to be called as a witness at trial . . .  [Fed.R.Civ.P. 26(b)(4)(D)]

Under this Rule, the work and opinions of a non-testifying, consulting expert is usually protected and usually not discoverable. On the other hand, the protections are specifically limited to consulting experts. It does not really address the situation where an expert was an actor or viewer with respect to occurrences that are the subject of the lawsuit.

It is possible for a witness to wear two hats: one as a specially employed expert in anticipation of litigation and one as an ordinary witness. When that happens, some of the information the expert holds may be protected, while other information may be subject to disclosure.

For example, in Caribbean Owners’ Ass’n, Inc. v. Great American Insurance Co. of New York, 2009 WL 499500 (S.D.Ala.2009), the plaintiff hired Mr. Smith to inspect its building to determine why it was leaking and to develop a solution to the building’s problems. The inspection occurred before Hurricane Ivan affected the plaintiff’s property. In the litigation, the plaintiff did not disclose Smith as a testifying expert.

The court determined that “extraordinary circumstances” required the expert’s deposition. Specifically, the court noted that the condition of the building before and after the hurricane was central in the case, and Smith had information about the pre-hurricane condition that could not be replicated.

Consulting experts who also wear a hat as a material witness may have to discuss their observations in deposition or trial, particularly if there are no other witnesses in a position observe what they did. Under those “extraordinary circumstances,” their observations could be critically important.