A recent decision of the Delaware Court of Chancery provides clarification on the amount of pretrial disclosure required in order for an expert’s testimony at trial not to be stricken. Project Boat Holding, LLC v. Bass Pro Group, LLC, C.A. No. 12606-VCS (Del. Ch. Aug. 10, 2018). This opinion addresses a point of practical importance not only for corporate and commercial litigation, but also for any other type of litigation in which experts testify at trial. Not all states follow the Delaware procedure of allowing pretrial discovery depositions of trial experts and there is a relative paucity of decisional law on this procedural topic.
The letter decision in this case was made in the context of a motion to strike trial testimony of an expert witness based on the argument that the expert had not sufficiently disclosed the full scope of his opinion or trial testimony in the required pretrial disclosures, or in his deposition.
Noteworthy Aspects of Decision:
· Court of Chancery Rule of Procedure 26(b)(4)(A)(i) provides that: “A party may 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 substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”
· Moreover, Rule 26(e)(1)(B) provides that once a response to expert discovery is given, the responding party must thereafter “seasonably supplement its response with respect to any question directly addressed to the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify and the substance of the person’s testimony.”
· The court instructed practitioners that: “the purpose of identifying and providing expert reports is to provide the opposing side with notice of the basis for the opinion and to allow them to respond in kind.” See footnote 5 and accompanying text.
· The court added that: “The requirement of a party to comply with discovery directed to identification of expert witnesses and disclosure of the substance of their expected opinion is a pre-condition to the admissibility of expert testimony at trial.” See footnote 6 and accompanying text.
· The court warned that when a proffering party has failed to provide adequate disclosure of his expert’s opinions to his opponent prior to trial, the court may exclude the testimony at trial, or receive it subject to objection and a later motion to strike the testimony from the trial. See footnote 7 and accompanying text.
· The court clarified that: “Under Rule 26, a party is only required to state the substance of the facts and opinion to which the expert is expected to testify and a summary of the grounds for each opinion. He need not provide every nuance or detail of the expert’s opinion in a pretrial disclosure (whether by report or interrogatory response), particularly given that our rule of procedure (and the court’s case management order in this case) allow for expert depositions.” See footnotes 8 and 9 and accompanying text.
· In this case, the court reasoned that on only one of the issues involved, the pretrial disclosures sufficiently identified the substance of the expert’s opinions and summarized the grounds for the expert’s conclusion; moreover, the contours of the expert’s opinion on that one issue were explored during his deposition. The court was satisfied after reviewing the pretrial disclosures that the trial testimony on that one subject was entirely proper and need not be stricken. This aspect of the opinion related to the laminated layers of the boat at issue–but the court reached a different conclusion regarding the expert’s opinion on the separate issue of the adequacy of testing.
· This decision is a useful tool for the toolbox of litigators of nearly any subject matter who need to determine how detailed their expert opinions and pretrial disclosures should be for purposes of making sure that the expert’s trial testimony will be admissible.