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omplex litigation is not limited to federal court practice. Expert witnesses are increasingly used in state court litigation. This article is intended to provide an understanding of state court expert discovery practice that is not dependent on prior knowledge of federal practice. Kansas courts do not follow federal practice in evaluating the admissibility of expert testimony, and the state rules track only parts of the federal discovery rules relating to expert witnesses. Rather than comparing and contrasting Kansas rules with federal practice, the plan here will be to offer a self-contained explanation of the mechanics of state court expert discovery that should help both lawyers and trial judges get through the process with the least likelihood of reversible error.
I. The Purposes of Expert Discovery Pretrial discovery serves more than one purpose. It is not like practicing for a sporting event. The purpose of pretrial discovery is not just to run though a series of drills to get in shape for the contest and refine technique. A deposition is more than a trial run at the cross examination you will use in the courtroom. There are four general purposes for conducting any discovery: 1. Factual investigation – the need to learn things you don’t already know; 2. Creating a record for summary judgment; 3. Creating a record for evidentiary objections; and 4. Creating a record for cross examination at trial. A winning trial strategy requires adequate knowledge of the testimony to be expected from each witness and the exhibits that will be offered. Expert testimony is especially suitable for pretrial discovery, because the experts’ opinions generally are not already present in the factual investigation available to the lawyers at the start of the litigation. A civil suit is unlike a sporting event because you may win or lose without ever taking the field, through use of the motion for summary judgment. Few cases that involve expert witnesses go to trial without the filing of a motion for summary judgment. Summary judgment procedures require consideration of the discovery record to determine whether the evidence establishes a genuine issue of material fact. The motion is certain to fail if the discovery record is inadequate to allow the judge to see that there is no such genuine issue. Often the only way to avoid summary judgment for your opponent is to present a credible attack on the opposition’s expert. A pretrial record of expert opinions may also be critical even in cases where there is no reasonable chance of a successful summary judgment motion. Some experts are not qualified to give an opinion, and some opinions are not admissible in evidence no matter who gives them. Any objection to an expert opinion that is not based on a discovery record is unlikely to succeed, because a judge can’t exclude an opinion that has never been stated in plain language. Waiting until the witness is talking to the jury before you hear what he has to say is not a winning game plan. If pretrial discovery has been done as well as it should be, you should have a wealth of material to discuss with the opposing exwww.ksbar.org
Legal Article: Successful Expert Discovery in Kansas ... pert on cross examination, ranging from a curriculum vitae to an expert report to a deposition transcript, and copies of any learned articles authored by the witness or relied upon by him.
II. Where’s the Rule Book? Basic rules concerning expert discovery appear at K.S.A. 60-226(b)(5) and (6).1 The rules relating to discovery of expert opinions were revised in 1997.2 It is error to apply expert discovery rules that have been superseded by legislative amendment.3 So cases that interpret and apply old versions of the discovery rules have limited usefulness. A special rule concerning disclosure of the results of a medical exam by an expert are found at K.S.A. 60-235.4 The authority of trial judges to impose deadlines for discovery and to limit the number of expert witnesses is found in K.S.A. 60-216.5 There are also local discovery rules in some judicial districts, so be aware of the special requirements of those courts.6
III. The Black Letter Rules of Expert Discovery Expert discovery is addressed primarily in K.S.A. 60-226, paragraphs (5) and (6). The most basic rule is the requirement that the parties disclose to one another the “identity of any person who may be used at trial to present expert testimony.”7 If a witness may be used by a party to present an expert opinion at trial, then that person’s identity must be disclosed. The rules impose additional disclosure requirements if the witness is someone who was hired to testify in the case, or if the witness is a party’s full time employee who regularly testifies as an expert.8 Parties are required to disclose the subject matter of the testimony, the facts and opinions to be covered, and a summary of the grounds for each opinion, for this category of expert witness. Every expert witness who will testify at trial is subject to deposition.9 The party who offers the expert witness must first provide the required disclosures about the nature of the testimony to be offered, before the deposition is to occur.10 The rule does not expressly require the expert to prepare and personally sign a written report, but the required disclosures must be in writing and signed by the party or by counsel, unless the court orders another method of disclosure.11 There are also benchwarmers, “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.” Discovery relating to those witnesses is restricted, and is available only on special showing.12 Not every person who might give an expert opinion at trial must necessarily fall within one of the classes defined by the rules. There are times when an expert opinion is unexpectedly elicited at trial from someone who was not previously known to be qualified as an expert, or from a person who was not expected to testify as an expert, but only as a fact witness. These witnesses may not be subject to the special disclosure rules of K.S.A. 60-226. Just as you can’t put a player in the lineup before you acquire him in a trade, you can’t disclose the opinions of an expert before you have determined that he is on your team and will testify at trial. The key event that triggers the special discovery rules for The Journal of the Kansas Bar Association | January 2013 37