RI Supreme Court: Testifying Experts’ Documents Not Discoverable by Opposing Parties
November 28th, 2016
Against long-standing practice, the Rhode Island Supreme Court has ruled that a testifying expert’s documents, including draft reports and other materials “considered” by the expert in formulating his or her opinion, are not discoverable. An expert’s notes, testing, draft reports, and other documents considered in formulating his or her opinion are now protected from review by the opposing party. This opinion, Cashman Equip. Corp, Inc. v. Cardi Corp., Inc., No. 2014-284-M.P. (R.I. June 3, 2016), undermines the ability of litigants to conduct a critical analysis challenging an expert’s methodology and cross examination of the expert’s opinions. In issuing its opinion, the Court felt bound to apply the “clear and unambiguous language of Rule 26(b)(4)(A),” however both the Supreme Court and the lower court justice expressed hesitation in the doing so, given the ruling’s consequences to litigants.
The Cashman case involved a dispute over the design of the Sakonnet River Bridge in Portsmouth, Rhode Island. Cashman Equipment Company, the contractor performing work on the bridge, alleged that Cardi Corp. had provided it with defective designs and materials, requiring additional work on the bridge and additional payment for its work. During discovery, Cardi produced a testifying expert, George Tamaro, who gave opinions about the stresses and loads on the bridge during construction. In response, Cashman sought Mr. Tamaro’s computer models that he considered in formulating his opinions. Cashman also sought Mr. Tamaro’s draft reports that preceded his final report. Cardi refused to produce both, arguing that R.I. Superior Court Rule of Civil Procedure 26(b)(4)(A) did not require disclosure. On Cashman’s motion to compel this information, the superior court justice agreed with Cardi that the rule did not require production of the requested information, even though the information sought would have undoubtedly helped Cashman’s attorney prepare to cross-examine Mr. Tamaro.
Cashman On Appeal
On appeal the Rhode Island Supreme Court agreed with the lower court justice, finding that Rule 26 does not provide for discovery of a testifying expert’s documents considered in formulating his or her opinion:
A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substances of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. A party may depose any person who has been identified as an expert expected to testify when the expert interrogatory has been responded to by the other party.
R.I. Superior Court Rule of Civil Procedure 26(b)(4)(A). This rule is different from its federal rule counterpart, which provides for disclosure of a testifying expert’s written opinion including “the data or other information considered by the witness in forming the opinions.” The Court relied upon the fact that Rhode Island amended its rule in 2006, with the benefit of the federal rule language, but chose not to include similar language requiring production of documents “considered by” testifying experts.
Also noteworthy, the Supreme Court ruled that the only methods of discovery allowed of testifying experts are interrogatories and depositions – not disclosure of documents. Up until now, it has been common practice in superior court cases for litigants to subpoena and receive during discovery draft reports, documents, and other information “considered by” the expert in formulating opinions. Now, under Cashman, this information is not discoverable, unless the parties agree otherwise. The only methods of discovery available to parties challenging a testifying expert’s opinion are interrogatories and a deposition of the expert prior to trial.
Now, the expert’s deposition will be the only opportunity to elicit the information considered by an expert in forming his or her opinion, including what methods were tested, and what information was reviewed and possibly rejected, in order to prepare for cross examination at trial.
Amending Rule 26(b)(4)(A)
An interesting question raised by this opinion is whether the Rhode Island Superior Court will accept the Supreme Court’s subtle invitation to recommend amending Rule 26(b)(4)(A), given this outcome. Certainly the Superior Court justice in Cashman acknowledged his frustration when he could not grant Cashman’s attorney the information needed to prepare for cross examination. And the tenor of this ruling runs directly contrary to the national trend in discovery. The rules of civil procedure, particularly in the federal courts, have trended over the last 20 years toward transparent and complete discovery to avoid trial by ambush. This opinion, interpreting what appears to be an antiquated version of Rule 26, reverts to the old regime. Until and unless Rhode Island amends this rule, expert opinions can be submitted as evidence at trial without the full disclosure of documents that would allow a critical challenge of the expert’s underlying methodology.
The Bottaro Law Firm LLC
The Bottaro Law Firm, LLC has helped many clients navigate expert discovery in preparation for trial. Mike Bottaro has successfully tried cases to jury verdict in state and federal court as well as successfully arbitrated, mediated, and settled hundreds of personal injury cases, recovering millions of dollars for his injured clients and their families. The Bottaro Law Firm will pursue your case at no cost until we win. Remember that delay can harm your case. Our experienced legal team is available 24/7 for a free consultation. Give us a call at 866-5290-9700, or complete our convenient online contact form.