The Expert Dance – Should Your Expert Lead or Follow?

The timing and sequence for disclosing expert opinions may have a significant impact on recovery. Most subrogation professionals are aware that expert testimony is critical in proving a strict products liability case. But, in addition to the substance of expert testimony, the timing and sequence of disclosing your expert’s testimony may also be critical. Expert disclosures can be one of the pivotal deadlines in litigation. Depending on the state or court where the case is pending, the sequence in which the parties will disclose their expert and the expert’s opinions may leave some room for disagreement where an established procedure is not mandated by the court or a clear rule. This article will outline two different procedures for designating an expert followed by a discussion of some pros and cons for each.
Simultaneous Disclosure: Under this approach, all parties simultaneously disclose an expert on a given date. For example, each party to a particular case will be required to disclose their expert, identify the expert’s opinions, and all the bases for the opinions on a specified date—June 1st for illustrative purposes. After the initial disclosure, the experts will typically have an opportunity to respond to the other experts through rebuttal—July 1st for illustrative purposes.

Staggered Disclosure: Where expert disclosures are staggered, the plaintiff will usually disclose its expert first, followed by the defendant’s disclosure, and then plaintiff will be provided with an opportunity for rebuttal. For example, plaintiff’s expert will disclose its expert on June 1st, defendant will disclose on June 15th, and the plaintiff will be provided with a rebuttal deadline of July 1st.

Depending on the facts of a particular case, the timing and sequence of disclosing your expert’s opinion may have a dramatic impact on the opinions offered. Under the simultaneous disclosure approach, a defense expert will be required to offer an opinion before evaluating the plaintiff’s theory. Conversely, under the staggered approach, a defense expert can offer an opinion after evaluating the plaintiff’s theory and supporting evidence, which allows the defense expert to build an opinion in response to the plaintiff’s theory. One benefit of the staggered approach is that the plaintiff’s expert will have the last word and be given an opportunity to rebut any opinion offered by the defense expert.

Other practical considerations in choosing between the simultaneous or staggered approaches are the benefits and drawbacks of having three disclosures versus two. Also, consider whether the additional disclosure deadline will pose any scheduling difficulties with the experts. Furthermore, it is important to know your expert in deciding which approach to follow. For experts who draft detailed and comprehensive reports, the staggered approach may have certain benefits whereas the simultaneous disclosure certain drawbacks. Experts who draft shorter outline reports may prefer the simultaneous disclosure so that additional information can be supplemented in a second report.

At the end of the day, each expert’ s opinion must stand on its own. But the timing and sequence for disclosing the opinion is an important consideration that may have significant substantive and practical effects on recovery.

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