For thirty five years, Massachusetts has had Rules of Civil Procedure. Rules 26-37 concern what is called discovery. In essence, the rules seek to bring about the free exchange of information between the parties. At least that is the theory. The theory, whether fully and faithfully observed, cannot be ignored. This lesson was made clear in last month’s Massachusetts Appeals Court decision of Hammell v. Shooshanian Engineering.
The Hammell case concerned the discovery of opinions of expert witnesses. As set out in Rule 26, a party is to describe the subject matter on which an expert will testify, the facts and opinions, and the grounds for each opinion. Moreover, a party has a duty to supplement those responses under certain circumstances. The Hammell court acerbically noted that one of the party’s experts made an “egregious about-face violat[ing] the purpose of Massachusetts Rule of Civil Procedure 26(e)”, the supplementation requirement. The Appeals Court cited the requirement to update answers where, for example, the expert is revising an opinion.
It is always the wise course to provide a detailed opinion of the designated expert, or at least as detailed as the attorney feels a court may expect. Otherwise, sanctions can result, not a pleasant experience for the attorneys or their clients.