Virginia Supreme Court Strictly Construes Rule 4:1(b)(4)(A)(i) Expert Disclosure Requirement
By Martin A. Conn
On September 14, 2007, for the first time, the Virginia Supreme Court ruled on the specificity required by parties disclosing expert witnesses pursuant to Rule 4:1(b)(4)(A)(i). In John Crane, Inc. v. Wanda T. Jones, Administratrix of the Estate of Garland F. Jones, Jr., the Court strictly interpreted the expert disclosure requirement, imposing a duty on parties to identify and describe their expert witnesses’ opinions and the grounds for those opinions to a level of specificity similar to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. Specifically, the Court affirmed a trial court ruling excluding opinions from John Crane’s experts that did not appear in its expert disclosure, even though the plaintiff had discovered the opinions during one of the expert’s deposition and from testimony and data obtained by the plaintiff’s counsel in other similar litigation.
The plaintiff alleged that her deceased husband was exposed to asbestos fibers and contracted a form of cancer known as mesothelioma as a result of his work with the defendant John Crane’s products. During John Crane’s case-in-chief, the trial judge excluded certain testimony, data and opinions from two of John Crane’s expert witnesses. The jury found in the plaintiff’s favor, awarding her $10.4 million. John Crane appealed the decision assigning error to several trial court decisions, including the exclusion of its experts’ opinions.
Rule 4:1(b)(4)A)(i) states:
A party may through interrogatories require any other party to identify each person whom the 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.
The Virginia Supreme Court Rules specifically do not require experts to prepare detailed reports, as required by the federal rules. The Rules permit and contemplate that parties can depose opposing experts and inquire in detail into the experts’ opinions and the grounds for such opinions.
In advance of trial, John Crane disclosed Dr. Victor Roggli to testify about his pathological diagnosis, about the association between asbestos and mesothelioma and the contribution, if any, of John Crane’s products and other manufacturer’s products to the decedent’s disease. The disclosure did not specifically address the level of asbestos in ambient air, nor did Roggli’s subsequent report containing his analysis of the decedent’s lung tissue samples.
The plaintiff’s counsel deposed Roggli after receiving his disclosure and report. During the deposition, the plaintiff’s counsel questioned Roggli specifically about his opinions regarding asbestos in the ambient air and according to John Crane these opinions were “well known” to the plaintiff and her counsel.
Nonetheless, the Court affirmed the trial court’s decision to prohibit Roggli from offering the ambient air opinion at trial. According to the Court:
A party is not relieved from its disclosure obligation under the Rule simply because the other party has some familiarity with the expert witness or the opportunity to depose the expert. Such a rule would impermissibly alter a party’s burden to disclose and impose an affirmative burden on the non-disclosing party to ascertain the substance of the expert’s testimony.
Thus, a party may not present evidence of an undisclosed opinion from an expert, even if the opposing party had and took advantage of an opportunity to explore that opinion at the expert witness’s deposition.
John Crane also disclosed an expert named Henry Buccigross to testify regarding his research and testing of various other products with which the plaintiff’s decedent had worked. John Crane failed to serve the plaintiff with reports of some of the research on which he relied. The plaintiff elected not to depose Buccigross, apparently because her counsel already had access to his testing and research.
The Court again affirmed the trial court’s decision to exclude evidence of tests Buccigross had run on certain products. John Crane argued that the plaintiff’s counsel knew the substance of the undisclosed reports because at trial they cross-examined Buccigross about a decade of his research and testing going back into the nineties. Although the plaintiff’s counsel had experience with John Crane’s expert and the disputed testing, the Court again refused to shift the burden to the non-disclosing party to discover information or opinions not specifically contained in expert disclosures. The Court stated that “an opponent’s ability to depose an expert or familiarity with such expert through prior litigation does not relieve a party from complying with the disclosure requirements of Rule 4:1(b)(4)(A)(i).”
Although the specificity required in expert disclosures previously has not been addressed by the Virginia Supreme Court, this opinion represents a departure from standard practices in many Virginia trial courts. At a minimum, trial court judges frequently have found that producing an expert for deposition cured any claimed defects in expert disclosures. In light of this new opinion, the lawyers at Moran Reeves & Conn PC will be advising clients to disclose experts, or have experts submit reports, with the same level of specificity as the federal rules dictate. Offensively, we intend to pursue exclusion of opposing expert testimony where disclosures have not been submitted to the stringent standard set forth in Garland Jones.
If you have any questions or comments regarding this opinion, feel free to contact Martin A. Conn, Esquire or any of the attorneys at Moran Reeves & Conn PC.