Drawing the Line Between Fact- and Expert-Witness Testimony

In addition to discussing his own experience with the Risperdal approval process, the biochemist testified on topics such as U.S. pharmaceutical regulations, which could fall within the province of witnesses disclosed as experts during discovery. At one point during the biochemist's testimony, the trial judge sent the jury out of the courtroom so that he could address concerns from the plaintiff's counsel that the biochemist was being treated like an expert witness, even though he was not identified as an expert during discovery and no expert report had been provided. The judge reminded counsel for Janssen that
“[t]here are some rules of civil procedure in this state and we're going to follow them.”

The Rules

Indeed, there are rules of both civil procedure and evidence related to this topic that bear exploration. Federal courts and many state courts subscribe to the principles concerning witness testimony set forth in the Federal Rules of Civil Procedure and the Federal Rules of Evidence. A testifying witness can be one of two types: a lay or fact witness, or an expert witness. Pursuant to Federal Rule of Civil Procedure 26, during discovery all parties are required to disclose the witnesses they expect to call at trial. Rule 26(a)(2) describes the mandatory disclosures related to expert testimony, such as a written report, and Rule 26(a)(3) provides for the identification of all other witnesses.

Furthermore, Federal Rule of Evidence 701 governs opinion testimony by fact witnesses who provide testimony based on their own observations or perceptions in a case. Rule 701 limits testimony from these types of witnesses to that “(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 [regarding testimony by expert witnesses].” On the other hand, Rule 702 governs testimony by expert witnesses who provide opinions based on their specialized training, expertise, and experience. Under Rule 702, a witness is allowed to state his or her expert opinion if “(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”

Hybrid Witnesses

At times, the distinction between fact and expert witness testimony can be a fine line, and in certain cases a witness may act as a “hybrid” witness and opine on matters of both perception and specialized knowledge. Hybrid witnesses are most common in cases involving a treating physician who provides factual testimony about a patient's diagnosis or treatment, and then opines on technical matters related to his or her medical practice, such as the standard of care. But hybrid witnesses are also appearing with increased frequency in the product liability context where employees who designed or manufactured a certain product are called as witnesses to discuss both their sense impressions formed while personally working with the product and their expert opinions ' derived from their specialized training in the field ' on whether the product could have caused the injury in question.

True hybrid witnesses often can only be designated as such if they formed their opinions before the prospect of litigation had developed. Accordingly, an individual who was retained to provide expert testimony typically cannot be designated as a hybrid witness. However, “merely because a party designates a witness as a hybrid fact/expert witness under Rule 26(a)(2)(A), as opposed to a retained expert under Rule 26(a)(2)(B), does not necessarily make him or her so. [A] court [will] analyze the source of the information that forms the basis of the witness'[s] opinion and determine whether the information was obtained in the ordinary course of the witness'[s] responsibilities or was provided by litigation counsel in order for the witness to form an opinion for the case.” In re USGen New England, Inc., No. 03'30465, 2007 WL 2363353, at *11 (D. Md. Aug. 16, 2007).

Prior to 2010, there were no disclosure requirements for hybrid witnesses. In 2010, however, the Advisory Committee on the Rules of Civil Procedure revised Federal Rule of Civil Procedure 26(a)(2)(B) to require that parties disclose the “facts or data” that witnesses who are “retained or specially employed to provide expert testimony in the case” considered for their opinions, in addition to a written report prepared and signed by the witness. And for non-reporting witnesses, who are not required to provide a written expert report, Rule 26(a)(2)(C) mandates that parties disclose “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.”

The Company Employee

Expert reports from witnesses like the biochemist who are testifying at trial on behalf of their employer often must be produced when the witness has no connection to the specific events underlying the case, or when he or she has reviewed information solely in preparation for litigation. However, depending on the circumstances, a company employee with long-standing knowledge of company matters may be considered a non-reporting witness under Rule 26(a)(2)(C) and will therefore not be required to provide an expert report. In such a case, the employee's identity, the subject matter that he or she will address at trial, and a summary of the facts and opinions on which he or she is expected to testify are nevertheless required to be disclosed during discovery.

The case, National Railroad Passenger Corporation v. Railway Express, LLC, 268 F.R.D. 211 (D. Md. 2010), discusses factors that may make employee witnesses fall on the expert side of the line, despite their designation as hybrid witnesses. In that case, the plaintiff did not provide expert witness disclosures or written reports by the discovery deadline, stating that it did not intend to call any specially retained experts. Instead, the plaintiff would only potentially be calling the employees it previously identified as hybrid witnesses in its answers to the defendant's interrogatories. The defendant argued that the plaintiff was attempting to avoid its expert disclosure and discovery obligations and accordingly filed a motion to compel the plaintiff's expert disclosures and written reports.

In deciding the motion, the court first found that the employees could qualify as experts because of “[t]he specialized nature of railroading and the unique skills and knowledge required for effective railroad operations” and the fact that they would offer at trial testimony on technical issues that are beyond common knowledge. Then, the court explored whether the employees were “retained or specially employed to provide expert testimony in the case” and found the nature and source of the employees' proposed testimony to be dispositive of their status as witnesses. If the testimony is predominantly factual in nature and is not likely to involve hypothetical information, the court noted, then no expert disclosure or report is required. Likewise, if the employee testifies about the knowledge gained in his or her ordinary employment duties versus providing forward-looking opinions based on information learned in the context of litigation, then identification as a hybrid witness is proper.

The court in National Railroad ultimately decided that factors indicating fact witness status were not present and that “but for their employee status, there is little question that the [plaintiff's] employees would be subject to the expert reporting requirement for their forecast opinions on the impact on '[the plaintiff's] real estate operations' or 'engineering and/or maintenance practices' related to [the plaintiff's] lack of access to the parcel [in question]. The fact that some of their testimony will be based on knowledge gained in the performance of their ordinary duties does not categorically relieve them of this requirement.”

Finally, it is important to note that even if a witness is properly designated by the offering party as a fact witness, any expert opinions that the witness has formed may be discoverable. For example, in Delcastor, Inc. v. Vail Associates, 108 F.R.D. 405 (D. Colo. 1985), the plaintiff sought to discover the expert report of an engineering consultant who worked for the defendant, and to depose the consultant as to its contents. Even though the defendant planned to call the engineering consultant as a fact witness to testify about his personal observations of the mudslide at issue and not about his opinions on the cause of the mudslide, the Colorado district court held that the consultant's expert opinions were properly discoverable under Federal Rule of Civil Procedure 26(b)(4)(A).

Testifying or Non-Testifying Experts

Rule 26(b)(4) sets forth the conditions upon which facts known and opinions held by an expert may be discovered. This rule divides experts into two categories: those who will testify at trial and those who, although they were retained in anticipation of litigation, will not testify at trial. The substance of the facts and the grounds for the opinions to which an expert is expected to testify are discoverable, but the same information generated by non-testifying experts is discoverable only upon a showing of exceptional circumstances because Rule 26(b)(4)(B) “was intended to prevent [a non-testifying] advisor from becoming an involuntary witness.” However, a party may discover facts known and opinions held by experts in order to prepare for cross-examination and impeachment of any witness.

As a result, the court opined that in this case, discovery of the consultant's expert opinion on the cause of the mudslide was required in order to cross-examine his testimony effectively regarding the factual circumstances of the mudslide. Moreover, the court explained that the distinction between fact and opinion testimony is often unclear and that facts based upon subjective observations can be tainted by opinions regarding causation such that “any fact testimony impliedly contains opinion testimony.” In addition to refusing to allow the defendant to “create the illusion of a distinction between types of testimony in order to frustrate [the plaintiff]'s discovery of the 'facts and opinions' held by its expert,” the court concluded that the consultant's opinions were properly discoverable on the separate ground that they were “reasonably calculated to lead to the discovery of admissible material” as described in Rule 26(b)(1).

Conclusion

In practice, many attorneys will want to err on the side of caution and disclose as an expert witness any employee whose testimony could enter into the realm of expert testimony. While there are real issues with doing so, it often is better to protect the admissibility of desired testimony.

Joshua Becker is a Partner and Sarah O'Donohue is an Associate in the Atlanta office of Alston & Bird's product liability group. They focus their practice on the defense of product liability, mass tort and class action claims.

As is often the case in product liability lawsuits, the recent bellwether trial in the Risperdal litigation involved several disputes about the admissibility of expert testimony. However, one such dispute is notable because the “expert” testimony in question was actually from a fact witness.

Expert or Lay/Fact Witness

Austin Pledger brought suit against the manufacturer of Risperdal, Janssen Pharmaceuticals Inc., for failure to adequately warn that patients taking the antipsychotic drug could experience abnormal breast growth. When defense testimony began at trial, Janssen called to the stand a biochemist who is employed by the company's parent. The biochemist served as the team leader for Janssen's research and development for Risperdal between 1999 and 2009. He testified that the Food and Drug Administration (FDA) repeatedly approved Risperdal and its expanded use in treatment of children, like Austin, who had been diagnosed with autism.

In addition to discussing his own experience with the Risperdal approval process, the biochemist testified on topics such as U.S. pharmaceutical regulations, which could fall within the province of witnesses disclosed as experts during discovery. At one point during the biochemist's testimony, the trial judge sent the jury out of the courtroom so that he could address concerns from the plaintiff's counsel that the biochemist was being treated like an expert witness, even though he was not identified as an expert during discovery and no expert report had been provided. The judge reminded counsel for Janssen that
“[t]here are some rules of civil procedure in this state and we're going to follow them.”

The Rules

Indeed, there are rules of both civil procedure and evidence related to this topic that bear exploration. Federal courts and many state courts subscribe to the principles concerning witness testimony set forth in the Federal Rules of Civil Procedure and the Federal Rules of Evidence. A testifying witness can be one of two types: a lay or fact witness, or an expert witness. Pursuant to Federal Rule of Civil Procedure 26, during discovery all parties are required to disclose the witnesses they expect to call at trial. Rule 26(a)(2) describes the mandatory disclosures related to expert testimony, such as a written report, and Rule 26(a)(3) provides for the identification of all other witnesses.

Furthermore, Federal Rule of Evidence 701 governs opinion testimony by fact witnesses who provide testimony based on their own observations or perceptions in a case. Rule 701 limits testimony from these types of witnesses to that “(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 [regarding testimony by expert witnesses].” On the other hand, Rule 702 governs testimony by expert witnesses who provide opinions based on their specialized training, expertise, and experience. Under Rule 702, a witness is allowed to state his or her expert opinion if “(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”

Hybrid Witnesses

At times, the distinction between fact and expert witness testimony can be a fine line, and in certain cases a witness may act as a “hybrid” witness and opine on matters of both perception and specialized knowledge. Hybrid witnesses are most common in cases involving a treating physician who provides factual testimony about a patient's diagnosis or treatment, and then opines on technical matters related to his or her medical practice, such as the standard of care. But hybrid witnesses are also appearing with increased frequency in the product liability context where employees who designed or manufactured a certain product are called as witnesses to discuss both their sense impressions formed while personally working with the product and their expert opinions ' derived from their specialized training in the field ' on whether the product could have caused the injury in question.

True hybrid witnesses often can only be designated as such if they formed their opinions before the prospect of litigation had developed. Accordingly, an individual who was retained to provide expert testimony typically cannot be designated as a hybrid witness. However, “merely because a party designates a witness as a hybrid fact/expert witness under Rule 26(a)(2)(A), as opposed to a retained expert under Rule 26(a)(2)(B), does not necessarily make him or her so. [A] court [will] analyze the source of the information that forms the basis of the witness'[s] opinion and determine whether the information was obtained in the ordinary course of the witness'[s] responsibilities or was provided by litigation counsel in order for the witness to form an opinion for the case.” In re USGen New England, Inc., No. 03'30465, 2007 WL 2363353, at *11 (D. Md. Aug. 16, 2007).

Prior to 2010, there were no disclosure requirements for hybrid witnesses. In 2010, however, the Advisory Committee on the Rules of Civil Procedure revised Federal Rule of Civil Procedure 26(a)(2)(B) to require that parties disclose the “facts or data” that witnesses who are “retained or specially employed to provide expert testimony in the case” considered for their opinions, in addition to a written report prepared and signed by the witness. And for non-reporting witnesses, who are not required to provide a written expert report, Rule 26(a)(2)(C) mandates that parties disclose “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.”

The Company Employee

Expert reports from witnesses like the biochemist who are testifying at trial on behalf of their employer often must be produced when the witness has no connection to the specific events underlying the case, or when he or she has reviewed information solely in preparation for litigation. However, depending on the circumstances, a company employee with long-standing knowledge of company matters may be considered a non-reporting witness under Rule 26(a)(2)(C) and will therefore not be required to provide an expert report. In such a case, the employee's identity, the subject matter that he or she will address at trial, and a summary of the facts and opinions on which he or she is expected to testify are nevertheless required to be disclosed during discovery.

The case, National Railroad Passenger Corporation v. Railway Express, LLC , 268 F.R.D. 211 (D. Md. 2010), discusses factors that may make employee witnesses fall on the expert side of the line, despite their designation as hybrid witnesses. In that case, the plaintiff did not provide expert witness disclosures or written reports by the discovery deadline, stating that it did not intend to call any specially retained experts. Instead, the plaintiff would only potentially be calling the employees it previously identified as hybrid witnesses in its answers to the defendant's interrogatories. The defendant argued that the plaintiff was attempting to avoid its expert disclosure and discovery obligations and accordingly filed a motion to compel the plaintiff's expert disclosures and written reports.

In deciding the motion, the court first found that the employees could qualify as experts because of “[t]he specialized nature of railroading and the unique skills and knowledge required for effective railroad operations” and the fact that they would offer at trial testimony on technical issues that are beyond common knowledge. Then, the court explored whether the employees were “retained or specially employed to provide expert testimony in the case” and found the nature and source of the employees' proposed testimony to be dispositive of their status as witnesses. If the testimony is predominantly factual in nature and is not likely to involve hypothetical information, the court noted, then no expert disclosure or report is required. Likewise, if the employee testifies about the knowledge gained in his or her ordinary employment duties versus providing forward-looking opinions based on information learned in the context of litigation, then identification as a hybrid witness is proper.

The court in National Railroad ultimately decided that factors indicating fact witness status were not present and that “but for their employee status, there is little question that the [plaintiff's] employees would be subject to the expert reporting requirement for their forecast opinions on the impact on '[the plaintiff's] real estate operations' or 'engineering and/or maintenance practices' related to [the plaintiff's] lack of access to the parcel [in question]. The fact that some of their testimony will be based on knowledge gained in the performance of their ordinary duties does not categorically relieve them of this requirement.”

Finally, it is important to note that even if a witness is properly designated by the offering party as a fact witness, any expert opinions that the witness has formed may be discoverable. For example, in Delcastor, Inc. v. Vail Associates , 108 F.R.D. 405 (D. Colo. 1985), the plaintiff sought to discover the expert report of an engineering consultant who worked for the defendant, and to depose the consultant as to its contents. Even though the defendant planned to call the engineering consultant as a fact witness to testify about his personal observations of the mudslide at issue and not about his opinions on the cause of the mudslide, the Colorado district court held that the consultant's expert opinions were properly discoverable under Federal Rule of Civil Procedure 26(b)(4)(A).

Testifying or Non-Testifying Experts

Rule 26(b)(4) sets forth the conditions upon which facts known and opinions held by an expert may be discovered. This rule divides experts into two categories: those who will testify at trial and those who, although they were retained in anticipation of litigation, will not testify at trial. The substance of the facts and the grounds for the opinions to which an expert is expected to testify are discoverable, but the same information generated by non-testifying experts is discoverable only upon a showing of exceptional circumstances because Rule 26(b)(4)(B) “was intended to prevent [a non-testifying] advisor from becoming an involuntary witness.” However, a party may discover facts known and opinions held by experts in order to prepare for cross-examination and impeachment of any witness.

As a result, the court opined that in this case, discovery of the consultant's expert opinion on the cause of the mudslide was required in order to cross-examine his testimony effectively regarding the factual circumstances of the mudslide. Moreover, the court explained that the distinction between fact and opinion testimony is often unclear and that facts based upon subjective observations can be tainted by opinions regarding causation such that “any fact testimony impliedly contains opinion testimony.” In addition to refusing to allow the defendant to “create the illusion of a distinction between types of testimony in order to frustrate [the plaintiff]'s discovery of the 'facts and opinions' held by its expert,” the court concluded that the consultant's opinions were properly discoverable on the separate ground that they were “reasonably calculated to lead to the discovery of admissible material” as described in Rule 26(b)(1).

Conclusion

In practice, many attorneys will want to err on the side of caution and disclose as an expert witness any employee whose testimony could enter into the realm of expert testimony. While there are real issues with doing so, it often is better to protect the admissibility of desired testimony.

Joshua Becker is a Partner and Sarah O'Donohue is an Associate in the Atlanta office of Alston & Bird's product liability group. They focus their practice on the defense of product liability, mass tort and class action claims.