Undisclosed Expert Opinions

Rule of Procedure 26(E)(1) explicitly requires a party to seasonably supplement their responses (regardless of any request to do so) concerning the opinions, conclusions and findings of any expert witness.  This duty is absolute and is not predicated on either a Court order or repetitive discovery requests.  Lucas v. Dorsey, Corp., 609 N.E.2d 1192 (Ind. App. 1993). A party is entitled to know the subject matter of the experts testimony, the substance of the facts to which the experts will testify, their opinions, and a summary of the grounds for each opinion. In Ferrara v. Balistreri and DiMaio, Inc. (1985), D.Mass., 105 F.R.D. 147, a Defendant requested that the Plaintiff state for each expert the name, address, subject matter of their testimony, substance of facts to which the experts would testify, his opinions, and a summary of the grounds for each opinion. In response the Plaintiff noted for several of expert witnesses that he had not yet obtained a report setting forth the facts and opinions of the expert but would provide a copy of the same upon receipt. The Trial Court decided that such a response was inadequate under the Federal Rules of Civil Procedure and stated that:

The duty to supplement is a duty to supplement seasonably (original emphasis). Counsel must not postpone supplementation indefinitely by delaying the retaining of experts and expecting that when he will be able to supplement at the last possible moment before trial is to start. Similarly, counsel may not postpone supplementation by not obtaining from the experts which had been retained the information which is to be supplied in answer to expert interrogatories. In the instance case, counsel for the Plaintiffs did both.

Id. at 150.  The Court specifically ruled that it was improper to answer this interrogatory concerning experts on the basis that the witnesses= opinions would be disclosed when counsel for the Plaintiff “obtains” a report. Id. at 150. The Court determined that the Plaintiff’s counsel was under an affirmative obligation to procure such information so that he could file full and complete answers to the expert interrogatories, and was not entitled to delay in doing so. Id. at 150. The Court specifically rejected the Plaintiff’s position that he was under no duty to supplement if the experts had not given him the information. Id. at 150-151. Because of the Plaintiff’s failure to provide such information, the Court excluded the testimony of certain expert witnesses at trial. Id.           This Rule has also been applied even to rebuttal experts. McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993).

       Junk Science

Where the issue in a case relates to a specific area of expertise, an expert “must have sufficient skill in the particular area of expert testimony before an opinion may be offered in that area.”  Lytle v. Ford Motor Co., 814 N.E.2d at 308, (citing Armstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 365 (Ind. Ct. App. 2002), trans. denied.)(emphasis added).  Important to this case, “an expert in one field of expertise cannot offer opinions in other fields absent a requisite showing of competency in that other field.” Hegerfeld v. Hegerfeld, 555N.E.2d 853, 855-56 (Ind. Ct. App. 1990)(emphasis added).  A party proposing that an individual is a qualified expert bears the burden of establishing the foundation and reliability of the offered experts testimony.  Hannan v. Pest Control Services, Inc., 734 N.E.2d at 679.

The trial court is considered the gatekeeper for expert opinion evidence.   See Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 550 (Ind.Ct.App.1999), trans. denied, cert. denied by 529 U.S. 1021, 120 S.Ct. 1424, 146 L.Ed.2d 315 (2000). (citation omitted).   The trial court must weed out unreliable “junk science” from reliable scientific evidence.  Id.   To fulfill this function, it is entrusted with the discretion to rule on the admissibility of expert opinion evidence.  Id.

“Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.”  West v. State, 755 N.E.2d 173, 180 (Ind.2001) (quoting Evid. R. 702(b));  Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 550 (Ind.Ct.App.1999), trans. denied, cert. denied by 529 U.S. 1021, 120 S.Ct. 1424, 146 L.Ed.2d 315 (2000).  A trial court’s decision to exclude evidence will be reversed only if that decision is clearly against the logic and effect of the facts and circumstances before this court, or the reasonable, probable and actual deductions to be drawn from the evidence.  Wallace v. Meadow Acres Manufactured Housing, Inc., 730 N.E.2d 809, 812 (Ind.Ct.App.2000), trans. denied.   If the other side has hired a “whore” to testify make sure you review the scientific literature and consult your own expert to make sure such testimony is admissible.

       Surveillance Tapes

In Corrigan v. Methodist Hospital, 158 F.R.D. 54, 58-59 (S.D. Ind. 1994), a patient sued a physician for medical malpractice and sought to compel responses to discovery requests concerning any surveillance materials. The defense objected to these requests on the grounds that they seek impeachment and rebuttal evidence as well as attorney work product. The District Court held that the Plaintiff was permitted to obtain discovery of impeachment and rebuttal evidence and found the defense’s argument was not persuasive. The District Court specifically discussed Fisher v. National R.R. Passenger Corp., 152 F.R.D. 145 (S.D.Ind.1993), which was cited by the defense as support for the proposition that surveillance evidence is privileged attorney work product. (An objection was never raised here.)  The District Court analyzed Fisher and noted that this case “actually held that ‘[a]lmost uniformly, [ ] courts have held that evidentiary films or videotapes must be provided to the opposing party prior to trial.” 152 F.R.D. at 150 (citing cases)(Emphasis Supplied). The District Court went on to observe that Fisher went on to explore the issue of materials that would not be used at trial. It held that when tapes or other materials would not be used at trial, then they did constitute attorney work product, and were therefore privileged. The District Court noted that the defense argued that any surveillance materials, if they exist might be used at trial for impeachment or rebuttal purposes. Therefore, the defense contended that their case was different from Fisher, in that Fisher involved materials that would not be used at trial under any circumstances, and this case involves surveillance materials that may be used at trial.  The District Court rejected this argument holding that the general rule applies, and any surveillance materials are discoverable within the context of the attorney work product doctrine. Citing Snead v. American Export-Isbrandtsen Lines, 59 F.R.D. 148, 150-51 (E.D.Pa.1973) (surveillance materials discoverable because unavailable by other means and substantial need shown); Blyther v. Northern Lines, Inc., 61 F.R.D. 610 (E.D.Pa.1973).  The District Court held that defense must be given an opportunity to depose the plaintiff fully as to her injuries, their effects and her present disabilities. Accordingly, The District granted the Plaintiff’s Motion to Compel.

Indiana likewise utilizes the same rule.  See Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12 (Ind.Ct.App.1996).  As the Indiana Court of Appeals noted in Pioneer Lumber, Inc., the purposes of discovery are best achieved by requiring the defense to disclose the existence of surveillance films or be prohibited from presenting them at trial and required that, before disclosure, the defense be given an opportunity to depose the plaintiff fully as to his injuries, their effects, and his present disabilities. The Court found that disclosure prior to trial preserves the impeachment value of the videotape and allowed the defense to obtain the information necessary for effective cross-examination and to secure rebuttal testimony relying upon Snead v. American Export-Isbrandtsen Lines, supra.  However, the Court of Appeals also allowed the Plaintiff an opportunity to inspect the tape and address the discrepancy that would result from misleading photography; the necessary background information should be made available to the plaintiffs’ attorney so the fraud can be exposed.

When the defense has had an opportunity to depose the Plaintiff, and never took any depositions or conducted any discovery beyond preliminary written requests, it should be required to disclose such evidence prior to trial or have it.

    Failure to file Income Tax Returns

This is a common issue, but there is surprisingly little authority to address the problem.  However, the authority that does exist is favorable.  Robert & Co. Assoc. v. Tgner, 351 S.E.2d 82, 89 (Ga. App. 1986) and Bohan v. Ritzo, 679 A.2d 597, 603 ( N.H. 1996).  In these cases, the Courts recognized the prejudicial effect and misleading character such evidence would have in the minds of the jury. See Rules of Evidence 402 and 403.

    Evidence of Insurance Coverage