THE PRICE OF FAILING TO GIVE A COMPLETE ANSWER TO THE EXPERT INTERROGATORY: $3,603,712
September 20, 2012 § 4 Comments
What is the price of numerous discovery violations, including failure to make timely disclosure of the substance of the expert’s expected testimony and failure to supplement seasonably?
In Ballard Realty, et al. v. Ohazurike, et al., decided September 6, 2012, the MSSC reversed a jury verdict of $3,602,712 for those very failures on the part of the plaintiffs to designate their expert properly and give a complete answer to the expert witness interrogatory.
The Ohazurikes had designated a witness, Dr. Glover, and answered the rest of the usual expert interrogatory that their expert was …
expected . . . to testify to all things in her evaluations and opinions regarding the valuation of the lost income of the Plaintiffs and as to other things regarding the present value calculations and potential economic value and profitability of Plaintiffs company Upstart Games and the lost value of Plaintiff’s damages intellectual property board games.
The Ohazurikes attached a copy of the expert’s curriculum vitae (CV) as an exhibit to their designation of experts and added that “[a] copy of Dr. Glover’s report will be forwarded once it is received.” It was not until only five days before trial, on morning of the day that the expert was to be deposed that the report was received by opposing counsel. That report for the first time disclosed that the expert expected to project damages in excess of $15 million.
The defendants did file various motions with the court to try to get the expert testimony excluded, and they did object at trial based on the discovery violations, all to no avail. There was no other evidentiary basis in the record other than this particular expert’s testimony to support the $3 million-plus verdict, which the supreme court reversed.
Justice Randolph’s opinion explained:
¶14. We find that the trial court abused its discretion by allowing Glover to testify despite numerous discovery violations, including failure to timely disclose the substance of Glover’s expected testimony and to seasonably supplement discovery responses, and allowing the witness to give previously undisclosed testimony at trial. Mississippi Rule of Civil Procedure 26(b)(4) provides that “[a] party may through interrogatories require any other party to  identify each person whom the other 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.” Miss. R. Civ. Proc. 26(b)(4)(A)(i). Additionally, Rule 26(f) provides that “a party who has responded to a request for discovery with a response that was complete when made . . . is under a duty seasonably to supplement that party’s response with respect to any question addressed to . . . the subject matter on which [a person expected to be called as an expert witness] is expected to testify, and the substance of the testimony.” Miss. R. Civ. Proc. 26(f). We have provided that “[t]he failure seasonably to supplement or amend a response is a discovery violation that may warrant sanctions, including exclusion of evidence.” Hyundai Motor Am. v. Applewhite, 53 So. 3d 749 (Miss. 2011) (citation omitted)
¶15. The Ohazurikes failed to comply with Rule 26. In their original designation of experts, they named Glover as an expert witness and identified the subject matter of her opinions, but failed to state the substance of the facts and opinions to which she was expected to testify or to provide a summary of the grounds for her opinions. Ohazurikes did not provide the Defendants with the substance of Glover’s opinion until the morning of her deposition, five days prior to trial. The Ohazurikes’ disregard for the rules of discovery continued to trial, when they violated Rule 26(f) by introducing for the first time a new opinion without having amended or supplemented their discovery responses. In Hyundai Motor America v. Applewhite, 53 So. 3d 749 (Miss. 2011), we provided that, where a party had failed to amend or supplement its discovery responses with material changes to an expert’s opinion, the trial court’s refusal to grant any relief was an abuse of discretion warranting reversal, because “[w]e do not condone trial by ambush. [The defendant] was entitled to full and complete disclosure of the plaintiffs’ expert testimony. . . .” Hyundai, 53 So. 3d at 759. The introduction of an entirely new lost-profits estimate clearly was a material change to Glover’s opinion, of which the Defendants were entitled to full and complete disclosure seasonably before trial. We refuse to condone the Ohazurikes’ failure to comply with discovery requirements. Accordingly, we find that the trial court’s refusal to grant the Defendants any relief for the Ohazurikes’ failure to comply with the mandates of Rule 26 was an abuse of discretion and, combined with other errors to be discussed infra, warrants reversal.
Those “other errors” will find their way into another post.
Experts appear often in chancery. They testify to the matters like the best interest of children, parties’ and children’s mental and physical health, land lines, valuations, damages, surveys, handwriting, water flow, investments, and on and on. Usually, when an expert is involved, there is a lot at stake, either emotionally or financially, or both.
I have not seen many disputes over the adequacy and/or timing of the expert disclosures. When they happen, though, the results can be cataclysmic. And when they are not cataclysmic at trial, they can turn out to be up the line, as the Ohazurikes learned.
I have refused to allow an expert to testify who was not timely designated 60 days before trial per UCCR 1.10. I even refused to allow an expert to testify where there was no answer at all to the expert interrogatory (the actual answer was to the effect that “None at this time. Timely supplementation will be made.” It wasn’t). But I have not yet had to weigh the adequacy of the substantive questions.
Read this case closely for what it can teach you about what won’t cut it as an expert-witness response, as well as what it can teach you about how to make a record of objections that will do the job on appeal.