‘Over-disclosing’ expert witnesses in med-mal case can potentially lead to sanctions

By Angela L. Carr

Parties in medical malpractice lawsuits can be sanctioned for “over-disclosing” experts prior to trial, a Rhode Island Superior Court judge recently ruled.

In the case before the Court, defense counsel in a supplemental interrogatory answer identified seven expert witnesses with some overlapping medical specialties. In response, the plaintiff disclosed two additional experts classified as “rebuttal” experts.

In her 22-page opinion, the Honorable Netti C. Vogel advised that if the defendants rested at trial without offering testimony from each of the seven experts, she would consider conducting a post-trial hearing to determine whether to impose sanctions, such as attorneys’ fees and costs for expenses associated with deposing any non-testifying expert.

Typically, parties disclose two or more experts of the same specialty in an attempt to avoid a situation where scheduling conflicts prevent one expert from testifying at trial. Regardless of the motive, the judge stated that “’over-disclosing’ [witnesses] creates an undue burden and expense on adverse parties who must depose the adverse party’s expert witnesses. In some cases, it may chill a party’s ability to prosecute or defend a case.”

Justice Vogel also ruled that the plaintiff could disclose two rebuttal experts, but they could not be called as witnesses in the plaintiff’s case-in-chief. She deferred to the eventual trial justice to determine if, in fact, those experts would offer purely rebuttal testimony. Interestingly, Justice Vogel required the designated rebuttal witnesses to attest in affidavits that they were first contacted after both sides had disclosed their experts and experts’ opinions.

The defendants had sought an order striking the plaintiff’s supplemental expert disclosure, arguing that it violated the Court’s scheduling order because the experts in question were not offering rebuttal testimony. They contended that the plaintiff should have named the experts in their original disclosure, and that the plaintiff’s effort to characterize them as rebuttal witnesses was an attempt to circumvent the scheduling order requiring staggered disclosure of experts.

Justice Vogel – who presides over all scheduling orders and scheduling conferences in Rhode Island medical malpractice lawsuits – discussed at length her role in overseeing the state’s medical malpractice scheduling program first created in 2010 to address the problem of delays in scheduling dates certain for trials. Highlights of the judge’s remarks include:

  • Scheduling orders generally require a plaintiff to disclose experts at least 30 days before a defendant is required to disclose experts, in recognition that the plaintiff has the burden of proof at trial;
  • Depositions of experts can proceed in any order, and that the deposition of a plaintiff’s expert need not be taken until after the defendant disclosed experts;
  • The Court has the discretion to ensure compliance with scheduling orders and the medical malpractice scheduling program generally;
  • The Court has the authority to sanction parties for violating discovery or scheduling orders, such as precluding a party’s expert witness from testifying at trial;
  • The authority to rule on admissibility of expert testimony is committed to the sole discretion of the justice who ultimately presides over the trial.

Angela is a partner in the Providence office of Barton Gilman where she concentrates her practice on counseling medical professionals in professional liability matters, as well as mitigating risks and compliance with regulatory requirements.