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Missouri Now Authorizes Discretionary Federal-Type Expert Witness Discovery

November 22, 2013 | Peter Hoffman

In products liability and other complex cases, the deposition of testifying experts for each side often plays a key role. Integral to these depositions is the ability to adequately prepare for the questioning of the opposing expert.

Traditionally, Missouri has neither required testifying experts to prepare reports nor required detailed listing of anticipated opinions from each expert in an interrogatory answer. As a result, a Missouri defendant’s attorney might only learn the facts and analysis of the plaintiff at the deposition of the opposing expert, which sometimes occurs only a few weeks before trial. This ability to keep opposing counsel in the dark until the time of the deposition departs sharply from the approach taken in federal court, and has created challenges for counsel in their preparation for and conduct of the deposition of the opposing expert.

But a recent revision to Missouri’s Rules of Civil Procedure, which became effective January 1, 2013, may make this task a little easier. The revision appears in Rule 62.01 of the Missouri Rules of Civil Procedure, on Case Management Conferences. As a result, five new potential subjects may be raised at a Case Management Conference, i.e.

. . .

(6)    The sequence and timing of any discovery; (7)    The time for disclosure of experts; (8)    When documents prepared, reviewed, or received by a retained expert must be disclosed; (9)    Whether and to what extent any retained expert must disclose his or her  publications; (10)    Whether and to what extent any retained expert must disclose prior deposition or trial testimony or expert reports prepared under either Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure or an equivalent state rule;

These changes reflect the input of both the standing Supreme Court Civil Rules Committee and a temporary Ad Hoc Expert Discovery Committee established by the Missouri Supreme Court in February of 2010. It was my privilege to be one of the eleven attorney members appointed to this committee by the Supreme Court. Our Committee reviewed the scope of expert discovery in Missouri and was asked to recommend any changes to the existing scheme.

The final rule change reflects a balancing of interests. The Supreme Court did not want to impose the costs and complexities of more comprehensive expert discovery on every Missouri civil case. On the other hand, the Court empowered trial judges in appropriate cases, in consultation with counsel for the parties, to mandate more extensive expert discovery when warranted in a particular case.

The Case Management Conference may be requested by motion of any party or of the court. As the by-product of such a conference, a trial judge may now order that the sequencing and timing of discovery may be altered if needed. Moreover, the trial judge may require that retained (testifying) experts be disclosed at an earlier time in the progression of the case. In addition, the contents of an expert’s file may now be required to be disclosed in advance of the date of the deposition of the expert. Lastly, the expert’s previous deposition and trial testimony and even prior expert reports may be required to be disclosed by the retained expert.


Related Services: Product Liability
Attorneys: Peter Hoffman

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Baker Sterchi's Missouri Law Blog examines significant developments, trends and changes in Missouri law on a broad range of topics of interest to Missouri practitioners and attorneys and businesses with disputes subject to Missouri law. Learn more about the editor, David Eisenberg.

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