Proven Personal Injury Advocates. Competent Condemnation Lawyers. Obtaining Justice On Behalf of Victims Throughout North Carolina

Recent Changes to Rule 26-Part 1

Isaac Thorp recently spoke at a CLE for the North Carolina Bar Association about amendments to Rule 26. Isaac will also present this material at a CLE in Asheville for the Family Law Section of the NCBA in Asheville on May 6, 2017.

I. Introduction

Rule 26(b)(4) governs the procedure for expert witness discovery. The rule was recently amended, and is applicable to actions filed on or after October 1, 2015. The amendments govern the disclosure, discovery and payment of expert witnesses. They also provide trial preparation protections for draft expert witness reports or disclosures, and communications between a party’s attorney and her expert witness.

This manuscript addresses the following amendments:

Rule 26(b)(4)a.3. Disclosure through interrogatory answers

Rule 26(b)(4)a.2. Option to disclose expert report

Rule 26(b)(4)b.1 Depositions of testifying experts

(To be addressed in Part 2 of the blog series)

Rule 26(b)(4)d. Trial preparation protection for draft reports of testifying experts

Rule 26(b)(4)a.3. Trial preparation protection for consulting experts

Rule 26(b)(4)e. Trial preparation protection for communications between an attorney and her testifying experts

Rule 26(b)(4)c. Payment of experts

II. Rule 26(b)(4) does not apply to all experts

Rule 26(b)(4) permits discovery of facts known and opinions held by experts, that are acquired or developed in anticipation of litigation or for trial. It does not apply to the expert whose information was acquired “because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.” N.C.G.S. § 1A–1, Rule 26(b)(4) comment (1975). Given this distinction, a treating medical provider may not need to be identified as an expert witness under Rule 26(b)(4). Turner v. Duke University, 325 N.C. 152, 168, 381 S.E.2d 706, 716 (1989) (Party was not required to identify treating physician as expert witness).

While the Court of Appeals held in Lail ex rel. Lail v. Bowman Gray Sch. Of Med., 196 N.C. App 355,367, 675 S.E.2d 370, 377 (2009) that treating physicians represent a “bright line exception” to the requirement that treating physicians be designated pursuant to Rule 26(b)(4), other opinions have instead focused on how closely the proffered testimony relates to the treatment the physician provided. See Turner, 325 N.C. at 168, 381 S.E.2d at 716 (“…doctor [who] is or was the plaintiff’s treating physician and is called to testify not about the standard of the plaintiff’s care but rather about the plaintiff’s treatment . . . is not an expert witness.” (emphasis added).

In family law cases, this issue may arise with health care providers or tax accountants.

Practice Tip: The safer practice is to designate treating physicians, mental health providers or other opinion witnesses as experts, even though they gained knowledge of relevant transactions as actors or observers (for example, because they were counseling a child who later became the subject of a custody action) and not because they were specifically retained for the litigation purpose of providing expert testimony.

In response to an interrogatory seeking information about expert witnesses, I identify treating health care providers I expect to testify at trial this way:

"Pursuant to Rule 26(b)(4), treating healthcare providers constitute experts “whose information was not acquired in preparation for trial but rather because [they are] an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit[,]” and thus are outside the scope of Rule 26(b) designations. N.C.G.S. § 1A–1, Rule 26(b)(4) comment (1975). As such, treating health care providers are to be treated as ordinary witnesses for the purposes of Rule 26 discovery. Id.

Subject to and without waiving this exception, plaintiff reasonably expects to call her treating health care providers to testify regarding plaintiff’s injuries, the providers’ treatment of plaintiff’s injuries and conditions, their prognosis, opinions regarding medical causation, pain and suffering, mental anguish, permanent injury, and future medical treatments and the costs associated therewith. Plaintiff anticipates that these medical providers will base their opinions on the histories they have taken, their examinations and treatments, their review of medical records, and their knowledge, experience, and expertise that they have acquired in their fields of medicine."

I designate treating physicians and other experts in this manner, even though Rule 26(b)(4) may not require it, because I don’t want to risk the exclusion of their testimony by a judge who interprets Rule 26(b)(4) differently.

To avoid being surprised by an opinion witness at trial who falls outside the scope of Rule 26(b)(4), I always serve three interrogatories. The first seeks information about fact witnesses; the second seeks information about experts who were retained to provide opinion testimony; the third seeks information about witnesses who may provide opinion testimony, even though they fall outside the purview of Rule 26(b)(4):

  1. State the name, address, phone number, and employer of anyone whom you believe may have knowledge that is relevant to any issues involved in this action.
    • For each person identified, describe in detail what knowledge each witness may have about each issue.
  2. State the name, address, telephone number and area of expertise for each person you intend to call as an expert witness at the trial of this matter, and for each such expert witness, state the following:
    • The subject matter on which each expert is expected to testify.
    • The substance of the facts and opinions to which such expert is expected to testify.
    • A summary of the grounds for each opinion.
  3. State the name, address, telephone number and area of expertise for each person who may provide opinion testimony in this matter, regardless of whether they fall within the class of experts required to be disclosed pursuant to North Carolina Rule of Civil Procedure 26(b)(4), and for each such person, state the following:
    • A summary of the grounds for each opinion.
    • The substance of the facts and opinions to which such person is expected to testify.
    • The subject matter on which each person is expected to testify.

Identifying your own experts, and seeking the identities of the opposing party’s experts, even though the experts may fall outside the purview of Rule 26(b)(4), protects you offensively and defensively.

However, if you discover the need for a mental health counselor or accountant to testify, but the deadline for expert witness designations has passed, ask yourself these questions:

  1. Was the expert retained in the ordinary course of events – e.g. because a parent wanted her child to receive counseling, or because a business needed the services of an accountant – or was the expert retained in anticipation of litigation?
  2. If the expert was retained in the ordinary course of events, is her testimony closely related to her participation as an ordinary actor, or does it involve opinions that go beyond the scope of her original involvement?

The closer the expert’s testimony relates to her involvement as an ordinary actor, the more likely it is that her testimony as an ordinary witness will be permitted.

III. Discovery of testifying expert witnesses

A. Rule 26(b)(4)a.3. Disclosure through interrogatory answers

Rule 26(b)(4) requires that a party, in response to interrogatories, identify each expert witness who is expected to testify at trial, state the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion (N.C.G.S. §1-1A, Rule 26(b)(4) a.3).

Practice Tip: You must serve an expert witness interrogatory at least 90 days before the trial date to trigger the opposing party’s obligation to identify her experts, absent a court order or agreement between the parties. This deadline did not exist before the rule was amended in 2015.

Some commentators have mistakenly interpreted this amendment to require a party to automatically disclose her expert witnesses. This misunderstanding may be due to prefatory language in Rule 26(b)(4)a.1, which states that “to provide openness and avoid unfair tactical advantage in the presentation of a case at trial, a party must disclose to the other parties in accordance with this subdivision the identity of any witness it may use at trial to present evidence under Rule 702, Rule 703, or Rule 705 of the North Carolina Rules of Evidence.” The key phrase is “in accordance with this subdivision.”

Subsection (b)(4)a.3. includes this language:

"Witnesses not providing expert reports. —Unless otherwise stipulated to by the parties, or ordered by the court, a party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, . . .” (emphasis added)."

The opposing party is not obligated to identify expert witnesses in the absence of an expert witness interrogatory, court order or an agreement to swap expert witness reports (discussed below).

B. Rule 26(b)(4)a.2. Option to disclose expert report

The amended rule also provides the parties with the option – but not the obligation – to serve a written report prepared and signed by the expert witness. Parties who elect to exchange expert reports must serve them at least 90 days before trial - the same deadline that exists for serving expert witness interrogatories.

If produced, the expert witness report must contain the following information:

  1. A complete statement of all opinions the witness will express and the basis and reasons for them.
  2. The facts or data considered by the witness in forming them.
  3. Any exhibits that will be used to summarize or support them.
  4. The witness’ qualifications, including a list of all publications authored in the previous 10 years.
  5. A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition.
  6. A statement of the compensation to be paid for the study and testimony in the case.

N.C.G.S. § 1A–1, Rule 26(b)(4)a.2.

Federal Rule 26 does not offer parties the option of exchanging expert witness reports – it mandates exchange. Since most of the 2015 amendments to N.C. Rule 26 conform its provisions to its federal rule counterpart, it’s a bit odd that the legislature chose to make the exchange of expert reports optional. It is too early to tell whether many litigants in state court will elect this option.

C. Rule 26(b)(4)b.1 Depositions of testifying experts

Before Rule 26(b)(4) was amended in 2015, a party was limited to the use of interrogatories to discover information about an opposing party’s expert witnesses, unless a court order allowed additional discovery about experts by other means, such as the taking of an expert witness deposition. Practitioners often ignored this requirement, unless the opposing party objected. Rule 26 now permits a party as a matter of right to depose an opposing party’s testifying expert and to obtain additional information about the expert using document requests and subpoenas duces tecum.

Part 2 of this manuscript will be posted to this blog soon.