Civ Pro 2 Notes 10/29/04




There are two kinds of experts: testifying and consulting.You decide whether to have an expert testify at trial depending on what he or she will say and whether he or she will be an effective witness.The consulting witnesses can only be discovered in exceptional circumstances.You can get anything you want out of the testifying expert.


How do the Rules play out?Letís say the plaintiffs have two experts.They will both testify at trial.What do we have to disclose?We have to give up the names of both experts and the expert report.We must freely give it up without any request under Rule 26(a)(1).What about their depositions?Can the defendant depose these people?Letís say the second doctor isnít going to testify and we have no intention of using his report at trial.Is our disclosure burden different?Now that heís no longer a testifying witness, we donít have to disclose anything about him!That means you can get experts to figure out a case without the fear of whatever they find out being disgorged as long as you keep them from being a testifying expert.


Thompson v. The Haskell Co.


The plaintiff was fired by the defendant, and it was claimed that she suffered depression as a result.The claim is that the firing was due to sexual harassment.The plaintiff saw a doctor and that doctor made a report.The defendant wants a copy of the report.What role does Dr. Lucas play in this litigation?Is he a consulting witness or a testifying witness?He is a consulting witness.But you can get discovery from consulting witnesses under exceptional circumstances.So are these exceptional circumstances?The defendant wants Dr. Lucasís exam because it was very timely.If her emotional state is the result of having been fired, then you would think it would show up in this report because she files her complaint way, way later.So the defendantís lawyer wants to argue that this report will have evidence related to being fired.If the report doesnít mention being fired, then she probably was depressed for some other reason.The court finds the report discoverable and orders it produced.


Chiquita International Ltd. v. M/V Bolero Reefer


What happened?Chiquita wanted to ship their bananas from Ecuador to Germany.They hired Bolero Reefer to do the shipping, and they lost some of the bananas.There are two claims: one for the lost bananas that were left on the dock, and one for the bananas that got all nasty in the boat.Winer is an expert marine surveyor.In the world of surveying bananas on boats, he is apparently an expert!So Chiquita sues Bolero for bad bananas.In the context of this suit, we get Winerís testimony.Bolero wanted access to that testimony in order to look at the deposition.Is Winer an expert witness at all, or just a fact witness?The court decides that he is an expert witness.There can be an expert in anything as long as you can make the case out right.But couldnít they have just looked at the boat themselves, or gotten their own expert witness?


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