April 4, 2011 § 3 Comments

Uniform Chancery Court Rule (UCCR) 1.10 states that, “Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.”

The question arises from time to time whether Rule 1.10 requires disclosure where there has been no discovery request asking information about expert witnesses.  The question was answered succinctly in City of Jackson v. Perry, 764 So.2d 373, 383 (Miss. 2000), in which the Mississippi Supreme Court was confronted with a situation in a circuit court trial where the trial judge had allowed the testimony of two expert witnesses who had not been designated under the circuit court rule counterpart to UCCR 1.10.  The high court’s opinion states the law as follows:

“The City and Edwards argue that the trial court erred in allowing Officers Charles Smith and Tim Corbitt to testify as experts without being designated pursuant to Rule 4.04A of the Uniform Rules of Circuit and County Court. Rule 4.04A of the Uniform Circuit and County Court Rules, states that, “[a]bsent special circumstances, the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least 60 days before trial.” The City argues that Perry did not offer any special circumstances, at trial for not having designated either Officer Smith or Officer Corbitt and therefore, the trial judge abused his discretion when he allowed them to testify. The City argues that this Court should rule that the testimony from Officers Smith and Corbitt inadmissible.

“¶ 52. The City’s reliance on Rule 4.04A is misplaced. Rule 4.04A does not stand alone. In order for there to be a violation of a discovery request, there must first be a discovery request. Here, neither party made a discovery request pursuant to Rule 26(b)(4) of the Mississippi Rules of Civil Procedure. Here, the City failed to propound any discovery and conceded there is no discovery violation. The trial court stated that a party “can[not] object to them [Perry] offering it [expert witness] if you don’t ask for it in a discovery request.”

“¶ 53. There was no violation of Rule 4.04A because there was no discovery request pursuant to Rule 26(b)(4).”

If you want to invoke Rule 1.10, you must have made the discovery request for designation of experts.  And on the the flip side, if you’re asked to designate experts in discovery, you’d better do so more than sixty days before trial unless you can prove “special circumstances.”

I recently found special circumstances and allowed the testimony of an expert on less than sixty days notice where the case had been put on a fast track to trial due to exigent circumstances, no order expediting discovery had been sought or entered, and the discovery responses were not due under the rules until the day of trial.

Thanks to Professor Guff Abbott at Ole Miss Law School for the cite.

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