Virginia court gavel

Virginia Court Considers Whether Expert Disclosures Were Timely

Written on Tuesday, May 4th, 2021 by T.C. Kelly
Filed under: Expert Opinions, ExpertWitness, Working with Experts

A group of Virginia taxpayers brought a legal action challenging the tax assessments of their property by the County of Northampton and the Town of Cape Charles. The taxpayers relied on expert witnesses to prove that the assessors overvalued their property.

The trial court excluded the expert opinions on the ground that the taxpayers failed to disclose them before a deadline established by a scheduling order. The court then granted summary judgment to the government defendants. Noting that the government defendants were well aware of the identity and opinions of one expert, the Virginia Supreme Court reversed the judgment.

Disclosure of Jason Restein

In 2015, the government entities served an interrogatory that asked for the identification of expert witnesses. The taxpayers identified Jason Restein and disclosed his expert report. A plaintiff signed the interrogatory answers under oath, but the taxpayers’ lawyer failed to sign them.

The interrogatory answers were combined in a single document with a response to a request for production of documents. The lawyer signed that response. The lawyer also signed a certificate of service at the end of the document.

In 2018, the court scheduled the case for trial on April 6, 2019. The scheduling order required expert witnesses and their opinions to be disclosed 90 days before trial.

In March 2019, after a government lawyer notified the taxpayers’ lawyer that he hadn’t signed the interrogatory answers, the taxpayers’ lawyer signed them. The government then moved to exclude Reston as an expert witness because he had not been disclosed 90 days before trial.

The trial court ruled that the interrogatory answers did not constitute an effective disclosure of Restein until they were signed by the attorney. Since the attorney did not sign them within 90 days of the scheduled trial, the court granted the government’s motion to exclude Restein as a witness.

Disclosure of Steven Noble

The government served a supplemental interrogatory in December 2018 asking the taxpayers whether their intended experts had changed. The taxpayers responded by disclosing Steven Noble as an expert.

The response promised to elaborate on the disclosure by January 19, 2019. However, no additional response was provided until March 18, 2019, when the taxpayers provided Noble’s report.

The government moved to exclude Noble’s report because it was not disclosed within 90 days of the trial. The court granted that motion.

Appellate Decision

In the absence of testimony from Restein or Noble, the taxpayers could not offer an expert opinion of the fair market value of their property. The court therefore dismissed their lawsuit. The taxpayers appealed.

A Virginia rule of civil procedure allows a trial judge to exclude evidence as a sanction for disobeying a scheduling order. The court had little difficulty affirming the decision to exclude Noble’s testimony. While the disclosure of Noble’s identity was timely, the disclosure of his opinions was not. The taxpayers’ lawyer consented to the scheduling order before the court entered it and therefore had ample notice of the deadline.

The appellate court rejected the argument that the government could have obtained Noble’s opinions by taking his deposition. The court held that litigants must obey scheduling orders even if their opponents could obtain the same information in a different way.

The appellate court took a different view of the order excluding Restein’s testimony. The government received Restein’s report four years prior to the scheduled trial.

The court was unimpressed with the government’s argument that the disclosure of Restein’s identity was untimely because the taxpayers’ lawyer did not sign the interrogatory answers. Virginia procedural rules require that a discovery document contain the lawyer’s signature and address. The lawyer complied with that rule by signing the portion of the response that disclosed documents.

The lawyer’s failure to add a second signature to an unnecessary signature line following the interrogatory answers did not negate the fact that his signature appeared on the document. Since the rule does not require multiple signatures, the interrogatory answers were timely. Nor was it even arguable that the government was prejudiced, given that it received Restein’s report four years before the trial.

The trial court abused its discretion by excluding Restein’s testimony. It therefore abused its discretion by dismissing the case for lack of expert testimony. The appellate court therefore reversed the trial court’s judgment.

Lesson Learned

Courts take their orders seriously. While the trial court had no legal basis to exclude Restein’s testimony, the failure to make a timely disclosure of Noble’s opinions resulted in Noble’s exclusion. Lawyers run a huge risk when they fail to comply strictly with expert disclosure deadlines.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

Leave a Reply

Your email address will not be published. Required fields are marked *