The Dos and Don’ts of Calling a Withdrawn Expert Witness

As a case unfolds, expert witness opinions and reports don’t always reveal precisely the answers their respective parties hoped to see. In some cases, one side’s expert witness may actually come to conclusions that better support the opposition’s argument.

When this occurs, it’s not unusual for the party that originally presented the expert to withdraw that expert. But a sudden withdrawal begs the question: Can opposing counsel then call that expert witness – and more importantly, should they?

Although it’s common to think of an expert witness as “belonging” to the party that retained and disclosed them, this approach is not always accurate or in the best interests of your case. Instead, it is often worthwhile to think of an expert as “in play” regardless of which side originally brought the expert into the case.

Whose Witness Is This Expert?

Consider, for example, Guinn v. CRST Van Expedited, Inc. (WD Okla. 2011). The plaintiff was the driver of a tractor-trailer which was struck by another tractor-trailer that crossed into the plaintiff’s lane, killing him. The plaintiff’s wife brought a claim for negligence against the truck’s owner, the owner’s parent company, and the insurer.

The plaintiff retained a physician as an expert witness and listed him in the pre-trial order as a testifying expert. After taking the physician’s deposition, the defense decided not to retain an expert of their own. They felt the plaintiff physician’s testimony offered enough help to their case.

Both sides listed the physician as a potential expert witness for trial. After pre-trial motions in limine were complete, the plaintiff removed the physician from its witness list, but the defendants did not.

At trial, the plaintiff objected on the grounds that allowing the defense to use the plaintiff’s former expert would amount to prejudice to the plaintiff, and that it would also run afoul of Federal Rule of Civil Procedure 26. The plaintiff asked that the defense be barred from presenting the expert’s deposition or, if the deposition testimony were allowed, that the plaintiff be allowed to call the physician as its expert witness.

The trial court noted that FRCP 26(b)(4) “is silent as to how the court should treat the request by a party to use an adverse party’s designated expert at trial after the adverse party withdraws that expert’s designation.” While prior court decisions have held that an opposing party cannot depose an expert witness after they’ve been withdrawn, in this case, the deposition had already been taken before the expert was withdrawn. He had also been listed in two proposed pretrial reports as a testifying expert for the plaintiff and had produced a report before being withdrawn.

The court also considered the prejudice question, but also noted that the deposition testimony the defense sought to use did not make any mention of who had hired the physician as an expert. Therefore, the court allowed the defense to use the deposition testimony at trial, while also allowing the plaintiff to call the physician as a live witness if they chose.

Lessons on Using Expert Witness Testimony After Withdrawal

While few bright-line rules exist for calling an expert witness that has been presented and then withdrawn by opposing counsel, Guinn provides a number of factors to consider when arguing either for or against the practice. These factors include:

1. Timing. In Guinn, the fact that the expert was withdrawn relatively late in the discovery phase suggests that timing plays a role in determining whether a party’s former expert is “fair game” for the opposing party.
2. Participation. The Guinn court determined that Rule 26(b)(4)(D)’s provisions regarding consultant experts did not apply, because the plaintiff’s expert was listed as a testifying witness. In addition, the fact that the expert had already given a deposition, prepared a report, and been consistently listed as a testifying witness all weighed in favor of allowing the defense to use portions of the deposition testimony.
3. Evidence Presented. While the Guinn court did not comment on what might have happened if the defense had sought to call the expert as a live witness, the fact that the defense sought to introduce the deposition – which the defense had also taken – indicates that this route might offer an easier method to using an opposing party’s expert contributions at trial.
4. Prejudice. In considering prejudice, the Guinn court found it persuasive that the deposition testimony did not mention who had initially hired the expert. Previous cases in the 11th Circuit (such as Peterson v. Willie, 81 F.3d 1033 (11th Cir. 1996)) had held that it was erroneous for the jury to learn that an expert had originally been called by an opposing party, but that the error did not mandate reversal. Keeping this information from the jury, then, may bolster an argument for using an opposing party’s expert.

The further an expert has become involved in a case, the more likely it is that an opposing party will know what the expert will testify to – and will be better equipped to argue that its side should be allowed to present that expert witness’s testimony at trial.