Carefully Communicate with Testifying Experts!
- January 16th, 2021
- Lauren Zalona
- No comments
In California workers’ compensation, testifying experts are often involved in the litigation. Testifying experts can include anyone who may provide analysis or opinions as evidence. The evidence could come in the form of witness testimony or a written report.Ex parte communication is not permitted with doctors providing medical-legal evaluations, such as Qualified Medical Evaluators or Agreed Medical Evaluators. This means a party cannot communicate with the expert if the other party is not participating or notified of the communication. Specific rules require advance notice of some intended communications with QMEs or AMEs.
What about communications with other testifying experts? These can include vocational experts, industrial hygienists, other medical experts whose analysis may be considered by a medical-legal evaluator, and even treating physicians. If an expert may provide evidence to be used at a trial, at least some communications with the expert will be discoverable. With experts other than QMEs and AMEs, specific rules may not exist requiring immediate disclosure of communications, but the opposing party could ask about those during the discovery process or even at trial.
It is important to carefully consider what information is disclosed to testifying experts. Avoid communications that might imply the expert is a “hired gun” rather than an objective witness. Remember that an expert should be using primary factual information to form opinions, not assumptions or conclusions communicated by the hiring party. When opposing counsel asks an expert witness what facts led to an opinion, those should not include arguments by the hiring party!
Involvement by your legal counsel is critical to develop evidence from testifying experts that will be compelling at trial. It is also crucial to avoid inadvertent disclosure of communications with experts. We recommend that you consult with your attorney when expert communications or analysis are subpoenaed, to ensure that privileged information is not revealed.