A. General Questions

  • 1. Are written reports of damages required? Not all states require experts to prepare reports. If reports are required, what must be included in the report? (Some economic experts are unwilling to testify without providing a report even if a report is not required by law.) If expert reports are required, by what date are they required and what is the date of the closing of discovery after which further information from the other side cannot be obtained?
  • 2. Are depositions usually held? In some states, including Pennsylvania, depositions are almost never held.
  • 3. Are depositions routinely required of experts, and, if so, must expert reports, if required, be provided before an expert’s deposition?
  • 4. What information must experts keep in their files that is discoverable by the other side in the litigation? Most states require that the expert must keep hard copies of e-mailed messages and draft reports that may have been prepared before issuing a final report. However, the most recent version of the Federal Rules of Civil Procedure prevents discovery of such e-mail transmissions and draft reports. A few states have adopted the new federal rules, which apply generally to all cases in federal court. It is important for the expert to know what materials are required to be kept and make available to the other side upon request from the other side. An older rule under the Federal Rules of Civil Procedure is a requirement since December of 1993 that an expert provides a list of all testimonies at deposition and trial over the previous four years. Since such lists of testimonies are required in federal cases, attorneys in state cases frequently ask for an expert’s “Rule 26 list of testimonies” even though such a list is not required in that state. The retaining attorney may request that a copy of the expert’s Rule 26 list be provided to the other side even though it is not required.
  • 5. What are experts required to divulge about their incomes? Can an expert be required to provide tax returns or specific tax forms, and under what circumstances? In general, if the expert provides general information about earnings from economic consulting, the expert will not be required to provide tax returns, but may be required to provide 1099s that document payments to the expert in previous years by the retaining law firm. It is important to keep in mind that the attorney who retains an expert is his client’s attorney and not the expert’s attorney. It is conceivable that the expert may need to retain his or her own legal representation to preserve the expert’s own privacy.
  • 6. Are opposing experts permitted to be present at depositions or during trial testimonies, and under what circumstances?
  • 7. Are income taxes subtracted or not subtracted when calculating lost earnings for personal injury cases?
  • 8. Are income taxes subtracted or not subtracted when calculating either financial support or lost earnings in a wrongful death action? (Income taxation for purposes of litigation, as noted in this and the preceding question, is a topic that is covered in greater detail in Chap. 7 of this volume.)
  • 9. Is the state one in which the standards for admission of expert testimony are based on Daubert v. Merrell Dow Pharmaceuticals (1993), Frye v. United States (1923), or some other decision within that state that defines those standards? The expert may wish to ask the retaining attorney what decision in that state is considered the ruling decision in regard to this question. Reading a copy of that decision may be helpful in the expert’s work on the case.
  • 10. What past decisions have been made in the state regarding admission of economic testimony? If there are decisions excluding economic testimony, on what basis was economic testimony excluded?
  • 11. Are there any special requirements about discount rates the expert should or may use in his or her calculations? Two states, Michigan and Georgia, mandate use of 5.0 % gross discount rates when calculating present value in those states. In state cases other than medical malpractice cases in Pennsylvania, a real net interest rate of 0 % must be used. (In Pennsylvania, some experts add real growth, which results in a negative net discount rate.) In Kentucky, use of a 0 % net discount rate is allowed, but not required. Other states may have other special discount rate treatments that the expert needs to be aware of.
  • 12. What are the state’s Pattern Jury Instructions (PJI) for the type of case in which the expert has been retained? Can the retaining attorney provide you with a copy of the state’s PJI? Using wording found in the PJI in an expert’s report can be helpful.
  • 13. Are there special features in the state’s collateral source rule that the expert needs to be aware of? In general, benefits from insurance and government programs that have been available to the plaintiff after an injury, death or wrongful termination cannot be considered in determining the economic losses suffered by plaintiffs, but some states have special rules for how specific collateral sources can be considered. In New Jersey, for example, there are special rules for how disability benefits from Social Security must be treated when determining lost earnings. Many states have special rules about collateral sources that apply only to medical malpractice litigation.
  • 14. Are rebuttal experts permitted to discuss the opinions of experts on the other side of a case? In general, the answer is yes, but the expert may need to be sure that the retaining attorney can answer this question effectively because some judges may not be aware of the state’s rules in this regard. In some states, there are different dates by which “primary” reports and “rebuttal reports” must be submitted. In a “rebuttal report,” an expert is limited to “rebutting” a portion of the other side’s expert’s report or testimony, but cannot introduce new material not considered by the opposing expert.
  • 15. Are there key cases with respect to damages of the sort that will be claimed in the particular case assignment that the expert could read and consider?
  • 16. Are there tables that have been deemed authoritative for use in calculating economic loss. If so, are they outdated and ignored as a practical matter?
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