South Carolina Expert Witness Rules: What Litigators Need to Know

Expert testimony plays a critical role in South Carolina civil litigation, particularly in medical malpractice, product liability, and wrongful death cases. South Carolina maintains a formal approach to expert disclosures, rooted in its civil procedure and evidence rules. While some discovery practices mirror federal standards, others—especially those governing pretrial affidavits and the admissibility of scientific opinions—are distinct. Attorneys must adhere to firm procedural requirements or risk exclusion of key expert testimony.

Designation Requirements

Expert witness designation in South Carolina occurs through discovery responses and is governed by South Carolina Rule of Civil Procedure (SCRCP) 26(b)(4). There is no formal “designation” motion required, but parties must disclose their intent to call expert witnesses and provide the necessary supporting details during discovery.

Disclosure must include:

• The identity of the expert
• The subject matter of testimony
• A summary of the facts and opinions to be offered
• The basis for each opinion
• The expert’s qualifications

This information is usually disclosed in response to interrogatories or during a pretrial scheduling conference, with deadlines typically set by court order. Failure to disclose experts or provide sufficient detail may result in exclusion under SCRCP 37(b)(2).

Expert Disclosure Process

South Carolina follows a structured but flexible approach to expert exchange. Under SCRCP 26(b)(4)(A):

• Opposing parties may obtain discovery of facts known and opinions held by experts expected to testify.
• This includes depositions and interrogatories about the expert’s background, compensation, methodology, and opinions.

Unlike federal court, written expert reports are not required by rule, though courts may order them in complex cases. However, for medical malpractice claims, South Carolina imposes additional pre-suit requirements.

Under S.C. Code § 15-79-125, a plaintiff must file a Notice of Intent to File Suit, accompanied by:

• An Affidavit of an Expert Witness stating the applicable standard of care was breached
• A brief summary of the basis for the expert's opinion

This affidavit acts as both a preliminary disclosure and a threshold showing of merit.

Required Declarations

South Carolina courts require expert declarations in specific contexts, most notably:

1. Medical Malpractice Affidavit

As required by S.C. Code § 15-36-100 and § 15-79-125, any medical malpractice complaint must be preceded by an expert affidavit, declaring:

• The expert's familiarity with the standard of care
• The opinion that the defendant breached that standard
• The causal relationship between the breach and harm

Failure to file the affidavit with the Notice of Intent will result in dismissal unless the plaintiff demonstrates good cause.

2. Summary Judgment Affidavit

Under SCRCP 56(e), if a party relies on expert opinion at the summary judgment stage, the opinion must be submitted as a sworn affidavit or declaration that:

• Is made on personal knowledge
• Sets forth admissible facts
• Demonstrates the expert’s competence and foundation for their opinion

Fees and Compensation

Expert witness fees in South Carolina are negotiated privately and are not regulated by statute. However, SCRCP 26(b)(4)(C) provides that:

• The party seeking to depose an opposing expert must pay a reasonable fee for the expert’s time
• The court may intervene to determine the reasonableness of such compensation

Preparation time is generally compensable, especially in scientific or technical testimony. Courts look to the expert’s credentials and customary rates in determining reasonableness.

Discovery Scope and Limitations

South Carolina permits targeted expert discovery under Rule 26(b)(4). This includes:

• Expert depositions
• Interrogatory responses concerning the expert’s opinions, methodology, and reliance materials
• Compensation arrangements

Discovery of non-testifying consultants is limited to circumstances involving exceptional need, such as where the information is otherwise unavailable. Additionally, South Carolina law offers limited protection for draft reports and attorney-expert communications, which may be discoverable absent a specific protective order or privilege claim.

Admissibility Standards

South Carolina applies a Daubert-like reliability standard, following the state’s adoption of a revised Rule 702, South Carolina Rules of Evidence, and key decisions such as State v. Council, 515 S.E.2d 508 (S.C. 1999) and Grimshaw v. White, 434 S.C. 557 (2021).

Under Rule 702 and Council, expert testimony is admissible if:

1. The expert is qualified based on knowledge, skill, experience, training, or education
2. The testimony assists the trier of fact
3. The opinion is based on sufficient facts or data
4. The opinion is the product of reliable principles and methods
5. The expert has reliably applied those principles to the facts of the case

Judges act as gatekeepers and may conduct pretrial hearings to assess admissibility. South Carolina courts require a clear showing that the expert’s methodology is not only accepted in the field but also applied appropriately to the specific case.

Key Deadlines & Strategy Notes

Expert deadlines in South Carolina are typically set by case-specific scheduling orders, but common benchmarks include:

• Expert identification: Often 90–120 days before trial
• Rebuttal experts: 30–60 days after initial disclosure
• Summary judgment motions with expert affidavits: Due before trial per court’s scheduling order
• Medical malpractice affidavit: Must be filed with the Notice of Intent before initiating suit

Strategically, early expert retention is vital—especially in medical and professional liability claims. Experts must be vetted not only for their qualifications, but also for the methodology they intend to use, which will be scrutinized under the Council standard.

State-Specific Statutes & Local Rules

• SCRCP 26(b)(4): Controls expert witness discovery and depositions
• SCRCP 56(e): Requirements for affidavits supporting summary judgment
• S.C. Code § 15-79-125: Pre-suit notice and expert affidavit requirement in med-mal cases
• S.C. Code § 15-36-100: Qualifications of medical experts in malpractice claims
• S.C. R. Evid. 702: Admissibility of expert testimony
• State v. Council, 515 S.E.2d 508 (1999): Foundational case on expert testimony admissibility
• Grimshaw v. White, 434 S.C. 557 (2021): Reinforced Daubert-style analysis

Local rules and scheduling orders—especially in Charleston, Richland, Greenville, and Horry Counties—may further refine expert disclosure timelines and requirements.