A recent change to the Massachusetts Rules of Civil Procedure regarding expert disclosure may create a short-term trap for the unwary, but in the long run will likely benefit plaintiffs by providing impeachment material for defense expert witnesses who have always enjoyed a fair amount of latitude to improvise in giving trial testimony. Effective January 1, 2013, the Supreme Judicial Court has approved new Rule 30B of the Massachusetts Rules of Civil Procedure. The Rule requires that answers to expert interrogatories be signed not only by the party, but by the expert, as a certification that the disclosure accurately reflects the expert’s opinion.
To lawyers who regularly practice in federal courts, or in other states where more extensive expert discovery is routine, this rule change may seem insignificant. But to lawyers accustomed to the Massachusetts practice, where expert reports are not usually discoverable and expert depositions are permitted only by leave of court, this Rule represents the first opportunity to hold an expert witness accountable by impeachment with the contents of a party’s disclosure. Until now, an expert confronted with an inconsistency or omission in a Rule 26 disclosure could usually avoid impeachment by denying any involvement with the preparation of the answer. This new rule closes that loophole up tight!
While the rule applies equally to both sides–and even covers a party’s employees who regularly give testimony as part of their job duties–in many cases, the practical effect will be to help level the playing field for plaintiffs.
In many medical malpractice cases, the defense already has the benefit of a signed report from the plaintiff’s expert that was presented to a medical malpractice tribunal as required by General Laws, Chapter 231, Section 60B. This report, usually prepared before the plaintiff is entitled to any discovery or depositions from the defendant, contains preliminary opinions. These reports are intended simply to satisfy the minimal standard of the tribunal, and not to be a full disclosure of the expert’s opinion as required by Rule 26. It is common that later testimony or records may cause the expert to modify some opinions and develop new ones which were not apparent at the time of initial review. Nevertheless, most judges will permit the plaintiff’s expert to be questioned about this letter, and often will not permit the jury to hear about the circumstances surrounding its preparation, the purpose of the opinion letter, or even what limited information was available at the time. Thus, the plaintiff is forced by the tribunal requirement to supply the defendant with a written opinion that often becomes fodder for impeachment, while the defense expert is not required to put his name to anything.
Rule 30B requires both sides to obtain their experts’ affirmation that the disclosure of their opinions is accurate. Even in the absence of a signed report, this adoption by the experts of the disclosure statement should make the disclosure available for impeachment if the expert deviates in his testimony. The Rule strikes a good balance between the need for both sides to have a means to impeach opposing experts and the greatly added expense of forcing an expert to prepare a report, as the federal courts require.
There will, no doubt, be lawyers who omit the required expert attestation, especially in the early days of the new rule. The Rule is silent as to the consequences of non-compliance, but it is difficult to believe that a trial judge would preclude the testimony of an expert whose disclosure, although substantively sufficient, was not properly signed. More likely, the offending party will be given an opportunity to secure the expert’s signature, as there seems to be no prejudice to the opponent as long as the disclosure is available for impeachment when the witness takes the stand.
The more thorny problem arising from non-compliance will come when an expert, presented at or shortly before trial with a disclosure made in his name, refuses to adopt it as his own. In that situation, the proponent of the expert would be forced to attempt an eleventh-hour revision of the disclosure. Depending on the nature of the change, that attempt may provoke the full range of consequences for late disclosure, up to and including preclusion of the expert’s testimony.