Non-Retained Expert Witness Disclosure: Is an Expert Report Required for a Treating Physician to Give Testimony?
An expert witness disclosure can completely shift the outcome of a case. The hands-on professional experience they provide to the court is priceless, and they can more effectively educate the jury on topics that would likely be misunderstood by the average person. However, the court system has fairly strict rules regarding expert witnesses across the nation, and every municipality tends to have its own minor details you have to worry about.
Today, we want to help you understand a little more about how expert witnesses are allowed to operate, and while we can’t go over every detail possible in one guide, we can focus on one of the most common questions.
Do you need an expert report for a treating physician giving testimony?
Let’s take an in-depth look.
Understanding Expert Witnesses and Expert Reports
Before we can start interpreting the law, it’s important for you to understand what you’re actually looking at from a technical standpoint.
For this topic, the two most confusing aspects are expert witnesses and expert reports. So, we’ll go into detail about what each of those is and what they do before we discuss how they interact with one another in the courtroom.
What is an Expert Witness?
An expert witness is a special type of witness who didn’t actually have any involvement in the situation that caused the case to take place. At least, that’s how it usually goes. They offer expert witness disclosure which can change the course of the trial.
Instead, an expert witness is a highly experienced professional from a field relevant to the case, and they provide professional insight into certain topics that might be difficult to understand but crucial to the case’s outcome.
Since we’re talking about physicians in this post, we’ll use them as an example.
A plaintiff’s injuries might need to be discussed in detail during a lawsuit regarding company negligence causing personal injuries. Think about the classic slip-and-fall case that happens at nearly every big box store or establishment.
The defendant is attempting to claim the plaintiff’s injuries aren’t as serious as the plaintiff claims. The expert witness can use their professional opinion to explain the full extent of the injuries entered into evidence, educate the jury and the judge on what those injuries can cause in one’s personal life, and opine on the severity of injuries shown in the evidence.
They weren’t around when the fall took place and can’t opine on the client’s situation specifically, but they can be used to support evidence and translate its meaning to the court.
What is a Non-Retained Expert Witness?
However, there are a few sub-types of expert witnesses. There are consultants that don’t testify but help you vet experts for your case, non-testifying expert witnesses that take on several roles, and even non-retained expert witnesses.
For the purposes of this guide, we’re talking about non-retained expert witnesses.
A non-retained expert is one that actually is connected to a party involved in the case; something a standard expert witness is not allowed to have. As such, they follow different rules. They typically aren’t forced to testify, but they can be compelled to testify, and if they do, they have to follow their own set of rules.
A good example of a non-retained expert witness is your client’s physician.
If the physician meets the qualifications to count as an expert witness, they may enter the trial as a non-retained expert witness who provides first-hand experience with your client’s treatments.
We’ll talk more about how this type of witness might be used during a trial later on.
What is an Expert Report?
An expert witness disclosure is a document often presented by an expert witness, whether they’re retained or not, to recreate an incident with their expert knowledge and explain it to the court step-by-step.
Let’s use the physician example from earlier, but it can be the client’s physician or just a highly experienced physician you’re hiring as a traditional expert witness. It doesn’t matter for this example.
During the fall detailed earlier, it is alleged that the client slipped on an unmarked spill in Local Big Mart. They went to catch themselves, and they broke both of their wrists severely upon impact. The plaintiff claims those injuries have caused them to miss six months of work due to intense surgical treatments to repair the wrists, long healing periods, and an inability to conduct their usual work duties.
The expert report for this incident would be built on the expert’s experience treating patients with such injuries, the average healing time, the necessity of surgical solutions, and more. The report would be developed by examining all evidence entered into the court, and then it would go step-by-step through the process from the incident throughout the healing phase.
The purpose of this is to explain what really happened and the consequences of it in a way that the court simply can’t get from looking at the evidence. Understanding that several bones were broken is a lot less useful than knowing how those bones broke, how doctors typically handle that situation, and the overall effects of the injury.
Differences with Non-Retained Expert Witness Reports:
There are some minor differences between the reports written by expert witnesses and non-retained expert witnesses.
On average, expert witnesses can only base their opinions on their personal experiences in general. They don’t know the client, the client’s situation, or the client’s unique circumstances. So, everything is very general.
However, a non-retained expert witness has a connection with the client. In the example we’ve been building on, the physician is the treating physician for the plaintiff and has been for years.
In that example, the physician is an expert in general, and they’ve been an imperative part of the client’s treatment plan before, during, and after the incident took place.
The physician can leverage that information in their report. For example, if they know for a fact, and have documented evidence of it, that their client has an abnormally weak bone structure that broke far more severely than usual and took more time to heal, they can bring that forward in their expert witness disclosure.
A normal expert witness wouldn’t custom tailor their report to the client in that way.
Is an Expert Report Required for a Non-Retained Expert Witness to Testify?
This is another factor that distinguishes non-retained experts from normal experts to a dramatic degree. So, we’re going to cover how expert reports work for both expert witnesses and non-retained expert witnesses.
We’ll start with your standard expert witness.
Does an Expert Witness have to Submit an Expert Report to the Court Before Testifying?
A standard expert witness, who has no connection to either of the parties involved and is entirely neutral, must submit an expert witness disclosure.
Not only must they submit a report, but it must be a full expert report that highlights every opinion they have on the part of the case they’re relevant to. So, in the example we’ve provided, they would have to fully recreate the incident per their experience and fact-based opinions, and then go on to provide explanations covering that recreation, before providing a comprehensive list of their own professional opinions and experiences relevant to the case to the court.
This is time-consuming, and it has to be written perfectly to satisfy the court’s demands for information. If the report is missing information, breaks the expert witness guidelines, or anything else, it can produce problems.
Does a Non-Retained Expert Witness have to Submit an Expert Report to the Court Before Testifying?
This is sort of a yes and no answer.
Technically, a non-retained expert witness does not have to submit an expert report. At least, not to the extent that a standard expert witness does.
Rather than highlighting every single detail of what they feel happened based on their professional experience, listing out every single opinion and fact that they’d like to present to the court, and more, a non-retained expert witness can simply summarize the basics.
This basic summary is far less complicated than a full expert report. It’s essentially just a rundown of all the facts and opinions the expert EXPECTS to bring in front of the court during their testimony. It’s a lot like what happens during delegation, but it’s a written form that highlights the expert’s talking points.
Why are Expert Reports Used?
There is a disclosure rule at the federal level that requires expert opinions to be disclosed to the opposing side. By requiring an expert report, or in the case of a non-retained witness a simple summary, the opposing team will have something to understand their opponent’s argument with and have ample opportunity to prepare accordingly. This is part of providing a proper chance for justice in the court system.
It also helps organize the court process, inform the judge and jury more effectively, and set a foundation for the expert witness’s involvement.
It’s key to remember that some, or even all, of an expert witness’s testimony, can be thrown out by the judge based on various factors. If the judge feels the expert isn’t properly qualified, or they aren’t providing opinions and facts relevant to the part of the case they’re supposed to, the entire testimony can be thrown out; meaning that this preliminary summary of expected opinions is key to determining if the witness will even be allowed to testify.
How Does a Non-Retained Expert Witness Work in the Trial?
This is the part where we go into more detail as we promised much earlier.
A non-retained expert witness can be absolutely key to the outcome of the case, but they do have to be accepted by the court and abide by various rules.
If your proposed expert witness doesn’t meet a set of requirements, or if the judge finds that the opinions in their expert report or summary don’t provide anything for the case, the expert can be denied, and anything they’ve already testified can be thrown out of consideration.
If everything goes according to plan during preliminary steps, and your non-retained expert witness submits their summary, the witness will be used in the trial and allowed to testify before the court.
During this phase, the non-retained expert witness will use a combination of their professional experience in general and their experiences with the party they are connected to, to provide the court with a far better understanding of the situation that took place and what it ultimately caused. At least, they’ll provide their opinions on it based solely on facts and first-hand experiences.
The summary provided by the non-expert witness will be available to the opposing team and the court in general. So, throughout the witness’s testimony, they might be forced to stick to the summary of their testimony and prevented from entering brand-new, unapproved, topics into the fold without being questioned.
This is another reason that, while it’s not a full report, the non-retained expert witness should take their time and flesh out their summary as much as possible; to prevent any sort of unfair advantage.
The opposing team might also use the summary upon disclosure to help adjust their argument.
How to Get a Non-Retained Expert Witness and Ensure They Testify Properly
Getting a non-retained expert witness can be a lot harder than getting a standard expert witness. With a standard expert witness, you can essentially vet a large group of available experts to find one whose opinions support your argument and then hire them.
With a non-retained expert witness being connected to your party’s client, that means your client has to be connected to an expert for it to even be a possibility. With medical cases, this is easier. Most people have a physician who would qualify as an expert. In some cases, psychiatric doctors might be easy to come across, too. However, it can be difficult when you start getting into other types of experts for various cases.
If you do end up finding a qualified non-retained expert witness you’d like to add to your team, you certainly don’t want to waste the opportunity.
So, contact Litigation Legal Insight for consultation on how to handle your non-retained expert witness, help to find other expert witnesses, and more.