David V. Dilenschneider, Esq., Director, Client Relations (Litigation) LexisNexis on expert witness disclosure:
As I travel the country conducting presentations on how to research experts, one of the topics I address is the need to double-check an expert’s FRCP 26(a)(2)(B) disclosure. If you are not familiar with that rule, it requires (in 26(a)(2)(B)(v)) that an expert disclose to opposing counsel, “a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition.” The reason why such double-checking is necessary is because some experts do not make full disclosures, hoping to hide damaging prior casework from the opposition.
For those who might doubt that experts sometime deliberately omit from their lists damaging prior casework, check out the recent case of Siegel v. Warner Bros. Entm’t, Inc., 2009 U.S. Dist. LEXIS 66115 (C.D. Cal. July 8, 2009). In that opinion the judge found it “disturbing” that the expert in question had failed to list in his disclosure a recent case in which his testimony had been excluded. The judge rejected the expert’s excuse of “inadvertent mistake” and stated “the Court can only conclude that the failure was a deliberate effort to bury negative information.” Id. at *16-17.
Ten years ago an attempt to bury negative information might have worked, but today, with so many resources now available online, the likelihood of success of such a strategy has been significantly diminished. Searches on an expert’s name through case opinions, Daubert Tracker Case Reports, verdicts and dockets can help a researcher determine when that expert has been less than forthcoming about his/her prior casework.
Excerpted from Expert Witness Research Forum at Martindale Connected.