Occasionally, we represent fact witnesses who also qualify as experts. What do you do when opposing counsel begins asking for expert opinions of such a witness when you have not designated him/her as an expert? Here is my recent experience.
I was asked to represent a design engineer in a deposition taken in a personal injury case. The company for whom the design engineer worked was not a party to the lawsuit but was closely affiliated with the defendant, i.e., his employer does a lot of design work, and oversees a lot of construction, for the defendant. Plaintiffs’ counsel wanted to find out what my client’s personal involvement in the project had been, and whether certain safety issues had been taken into account during the design phase and then the construction phase of the project.
Most of the questions were focused upon issues of fact: What were your responsibilities? Did you visit the construction site? Did you think about putting a railing up? Did you evaluate the cost of making a particular improvement or change in design, etc. Near the end of the deposition counsel for the plaintiffs asked my client for an expert opinion: with the benefit of hindsight, and based upon your years of experience as a design engineer, do you see any way in which the design of this project could have been made safer?
Naturally, to prove that I was awake and listening, I objected that this witness was appearing voluntarily as a fact witness, not an expert witness, and was not in a position to be giving expert testimony. Not to be deterred, counsel for the plaintiff pressed me: “are you instructing the witness not to answer?”
“Yes,” I said. “You know the question is inappropriate because this man is here only as a fact witness. You are not entitled to ask for opinions in this circumstance.”
“What is the privilege you rely upon to instruct him not to answer?” was the retort. “You can only instruct a witness not to answer if you have a privilege you are trying to protect.”
Of course, there is no privilege in the common law or statutory sense of the word, at least so far as I know, that prevents an obviously qualified fact witness from giving expert opinions. Nevertheless, it was entirely inappropriate and unfair, both to the witness and to the relationship between the witness’s employer and the defendant, to request such an opinion. It was one of those questions that had no good answer. If the witness said “I don’t have an opinion” then plaintiffs’ counsel would impeach his credibility as a design engineer. If he gave an opinion that was not properly thought out, it would be embarrassing to the witness, his employer and the defendant.
I took the position that U.R.Civ.P. Rule 26(a)(4)(B) was a sufficient justification for an instruction not to answer. It requires the one deposing the expert to pay the witness’s reasonable hourly fees for deposition time. We had a lengthy discussionundefinedcompletely civil, I might addundefinedon the record regarding our respective positions. Neither of us called the judge but counsel for the plaintiff vowed to file a motion and to reconvene the deposition. Since he already had experts I figured nothing would come of this threat. I underestimated his determination.
Within a few weeks I was notified that plaintiffs’ counsel had filed a Statement of Discovery Issues with the court. As a non-party to the lawsuit, I took the position that this procedure was inapplicable and inappropriate, and that the proper approach was to serve my client with a subpoena (we had appeared voluntarily) and to give me an opportunity to object. I argued that the Court did not have jurisdiction over my witness until he was brought before the court on some kind of official process. I did not think it advisable to get involved in the underlying case so I did not respond to the Statement of Discovery Issues. Since the Statement remained unopposed the Court entered an Order requiring my witness to appear for the 2nd round of his deposition. “Good luck enforcing this order” I told plaintiffs’ counsel.
A few weeks later counsel for the plaintiffs served my client with a formal subpoena directing him to appear for his deposition in Salt Lake County, where he lived. The case was pending in Weber County. I filed a formal objection to the subpoena, relying not only upon Rule 26(a)(4)(B), but also upon Rule 45(e)(3)(I), which makes it improper to require an undisclosed expert to give opinions that the deposing lawyer did not request. Further, I relied upon Rule 37 to point out that the Second District Court does not have jurisdiction to enforce a subpoena served upon a witness in the Third District. The full panoply of briefing ensued. The centerpiece of plaintiffs’ arguments was that there is no privilege that allows a fact witness to refuse to answer questions seeking expert opinions. (He was also unjustifiably critical of me for other reasons which I will not go into.)
Judge DiReda eventually issued an Order denying the plaintiffs’ motion to compel and sustaining my objection to any further questioning of my client for the purpose of eliciting expert testimony. He ruled that the Statement of Discovery Issues was not the correct method to use when dealing with non-party fact witnesses and that plaintiffs’ counsel was unjustified in his efforts to elicit expert opinions from a non-party fact witness. He also ruled that he lacked jurisdiction to enforce the subpoena because it was served upon a witness living in a different district for a deposition that was to take place in the residential district.
I have encountered other circumstances where opposing counsel wanted expert opinions from my fact witnesses but I have never had to put the question to the court nor challenge the axiom that the only basis for instructing a witness not to answer is the existence of a privilege. To the extent that Judge DiReda’s ruling is any indication of the law, I would say that illegal questions are also a sufficient basis for instructing a witness not to answer.
Phillip S. Ferguson