Expert witness opinions, perhaps even more than other evidence in a case, must usually be disclosed to the opposing party in advance of trial. In federal cases, disclosure is required by the procedural rules that govern civil and criminal trials. Most states have implemented similar disclosure requirements.

When lawyers fail to disclose expert opinions in advance of trial, bad things happen. Recent criminal and civil cases underscore the importance of making the required disclosure.

David Morgan Trial

In the State of Washington, David Morgan is charged with attempted first-degree murder, assault, and arson. Prosecutors are trying to prove that Morgan set fire to his home after dousing his wife with gasoline. Morgan’s lawyer told the jury that Morgan was trying to rescue his wife from the fire and that Morgan does not know how the fire started.

The Snohomish County fire marshal testified that he could not determine the fire’s point of origin. He said he could not rule out arson as the fire’s cause but that he found no physical evidence that would allow him to conclude that the fire was or was not deliberately set. Investigators did not find a gasoline can at the scene of the fire.

A second expert, however, came to a different conclusion. Mikael Makela, the Washington chapter president of the International Association of Arson Investigators, told the jury that he believes the fire resulted from arson.

Morgan’s attorney objected that the testimony came as a surprise. A pretrial order required the prosecution to disclose expert opinions to the defense before the expert testified. Morgan’s attorney believed that Makela shared the fire marshal’s opinion that the fire’s cause could not be determined. He therefore did not arrange for an expert of his own to review Makela’s opinion.

Makela testified that he advised the prosecutor of his opinion on several occasions before he testified. Because the prosecutor did not convey that information to the defense, the judge discharged the jury and declared a mistrial. The case could go to trial again after Morgan’s attorney obtains his own expert. The court will first need to decide whether to dismiss the charges based on the prosecution’s failure to obey the pretrial order.

Malibu Media Lawsuit

A copyright infringement lawsuit by Malibu Media against a defendant identified only as John Doe was recently dismissed by a federal magistrate in Chicago, in part because Malibu based its case on undisclosed expert opinions. Malibu, which produces and distributes erotic movies, claimed that John Doe illegally downloaded the movies from the internet without paying for the privilege of viewing copyrighted material.

Malibu relied on evidence provided by forensics investigators in Germany, who traced the improperly downloaded films to Doe’s IP address. Malibu admitted that the investigators could not find the movies on Doe’s computer, although it speculated that Doe might have found a way to erase them without leaving any traces. Doe denied downloading the movies and noted that his router had been accessed by an unknown device during the time that Malibu claimed he was downloading the material.

The court entered judgment against Malibu after ruling that the admissible evidence was insufficient to justify a trial. It disregarded expert evidence upon which Malibu relied upon because Malibu failed to make a timely disclosure of that evidence as required by a pretrial order. The court rejected Malibu’s contention that it was not required to disclose the evidence because its investigators were lay witnesses, not experts. The investigators relied upon knowledge of internet and computer technology that was beyond the knowledge possessed by most people and were therefore testifying as experts. The fact that Malibu’s lawyers touted their expertise during a court hearing also undercut the claim that the witnesses were not experts.

The Importance of Expert Opinion Disclosure

The lesson to be learned from the Morgan mistrial and the Malibu Media dismissal is that failing to disclose expert testimony can have dire consequences. It is easy to find examples of cases in which experts were not allowed to testify because parties did not adhere to the precise requirements of disclosure rules. Lawyers who work with expert witnesses should always be aware of disclosure rules and take care to comply with their requirements.