You don't have to depose the other parties' experts, and strategically, sometimes it can make sense not to. If you have a good sense that their report(s) are flawed and they may use the deposition to try to add key information to the record (regardless of your questions), it may make sense to avoid the deposition altogether.
That strategy is less common but certainly not unheard of—assuming trial counsel is confident in their positioning and ability to cross examine the expert at trial using their report and cited materials.
If you're thinking "well, we'll depose the expert, and move to exclude if they volunteer new opinions," that has risks too. If you move quickly after the deposition, you're going to be pushing up against the Pennypack factors, which look at disruption of trial and opportunity to cure prejudice (e.g., by another round of expert reports and another deposition—possibly exactly what the other side would want). When there is tons of time before trial, the factors naturally tend to favor admitting the new testimony.
If you're thinking "we'll just wait and move to exclude the new material in limine," that may not work either. The Court may fault you for waiting until there is no ability to cure.
We saw that yesterday in Allergan, Inc. v. Revance Therapeutics, Inc., C.A. No. 21-1411-RGA (D. Del. Nov. 14, 2024). The Court denied a motion in limine to exclude testimony that the expert volunteered at his deposition, because the moving party had waited too long.
The expert was asked what data he looked at in giving his opinion, and responded by citing a new document that he hadn't seen until after his report:
For Dr. Meagher, he was asked, “You looked at downstream processing samples [to determine the amount of residual DNA]?” When he replied, yes, he was asked, “Did you [run tests]?” to which he replied, no. Then, “So what data are you referring to in terms of you looked at Revance’s downstream processing samples?” He responded with the discussion of a regulatory document that he “had not seen before” Plaintiffs’ expert’s reply report was submitted.
Id. at 2. Judge Andrews found that this response wasn't quite appropriate:
Dr. Meagher’s testimony has more of the flavor of a purposeful taking advantage of an opportunity to advance a previously undisclosed opinion.
He found that the delay, however, warranted denying their motion to exclude, citing Pennypack:
Regardless, he did this six months ago. If Plaintiffs were substantially prejudiced in any way, there was plenty of time to seek relief, including, for example, brief supplemental reports from their experts. See Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 904–05 (3d Cir. 1977). I am unpersuaded that there is any prejudice. And, of course, Plaintiffs will be able to cross-examine Dr. Meagher and presumably bring out (as relevant) that the “RNA level” is not in his report because “I forgot.”
Id. at 3.
Would the plaintiffs have been better off just not examining this expert? It depends on how valuable the new opinions are, and how useful the cross examination testimony will be at trial.
And, of course, this is not necessarily the end. The Court denied the motion in limine because the testimony was disclosed, but to the extent the expert goes even further at trial, the plaintiffs can still try to cut him off. The Court will be more aware of the issue and ready to deal with it, given that it already resolved the MIL.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
