July 1999

The Reluctant Expert

by Mark R. Miller

I know of no teachers so powerful and persuasive as the little army of specialists. They carry no banners, they beat no drums; but where they are men learn that bustle and push are not the equals of quiet genius and serene mastery.

--Oliver Wendell Holmes, Jr, speech
Harvard Law School Association, Nov. 5, 1886

Experienced trial lawyers know that there is no paucity of experts willing and available to testify (at prodigious hourly fees) as expert witnesses in a wide variety of cases. But what about a situation where a person who possesses unique expertise, which a party needs to either prosecute or defend against a claim, simply does not wish to spend time in court testifying in a matter in which he or she has no interest? Can counsel for a party subpoena an unwilling expert to testify at trial? Recent case law suggests that, absent a showing of compelling circumstances, an expert cannot be compelled to testify.

Many federal and state courts hold to the traditional rule that an expert cannot be subpoenaed to serve as a witness against his or her will. The rationale behind such a rule is that it is unfair to impose the burden of having to neglect one's business or profession to appear in court in a case in which the witness has no interest. Likewise, compelling an expert to divulge his/her opinion in effect forces him/her to give up the intellectual fruits of many years of study and investigation.1

There is no Minnesota published opinion directly on point.2 However, in a case decided in February of this year, In Re Imposition of Sanctions in Alt v. Cline, 589 N.W.2d 21 (Wisc. 1999), the Supreme Court of Wisconsin held that absent a showing of compelling circumstances, an expert cannot be compelled to testify, whether or not the inquiry asks for the expert's existing opinions, or would require the expert to do additional work.

Alt involved a medical malpractice action for negligent delivery of a baby. The plaintiff subpoenaed a Dr. Acosta, who had provided prenatal care to the plaintiff, to testify as an expert witness. Dr. Acosta, who was not present at the delivery and was not named as a defendant, was asked a question during his deposition requiring his expert opinion on an issue of medical practice. On advice of counsel, he refused to answer and was thereafter sanctioned by the district court and ordered to answer. The Court of Appeals affirmed.

The Wisconsin Supreme Court, however, reversed and determined that Dr. Acosta was privileged to refuse to give an expert opinion and to serve as an expert witness. The Court relied upon Wisc. Stat. §907.06, the Wisconsin analog to Rule 706 of the Minnesota Rules of Evidence, which provides, inter alia, that although the court on its own motion may appoint an expert witness in a case, nevertheless "an expert witness shall not be appointed by the court unless the witness consents to act." The Court stated:

The language of this rule is clear and unambiguous. Reasonable people could not differ regarding the meaning of this rule. A judge may not appoint an expert unless the expert consents to so act. We conclude that this express grant implies a privilege to refuse to testify if the expert is called by a litigant. If a court cannot compel an expert witness to testify, it logically follows that a litigant should not be able to so compel an expert. It makes little if any sense to conclude that a litigant has greater rights than a court with respect to obtaining testimony from experts.3

Mark R. Miller, a graduate of the University of Minnesota (BA 1971) and of the University of Chicago Law School (JD 1974), is a partner at Miller & Smith PLLP in Minneapolis, concentrating in civil litigation. He previously served as associate general counsel at the University of Minnesota.

"Can counsel for a party subpoena an unwilling expert to testify at trial?"

The Court acknowledged that courts in other jurisdictions have reached different results on this issue. In some states, a witness "is not compelled to give expert testimony even if the witness had formed opinions prior to the deposition …"4 Other courts have adopted a narrow qualified privilege for experts, under which a witness may not be compelled to give expert testimony if doing so would require additional study, experimentation, thought or reflection.5

Some courts have adopted a broader qualified privilege under which an expert may be forced to testify, but only if the party seeking testimony "affirmatively demonstrate[s] some compelling necessity for an expert's testimony that overcomes the expert's and the public's need for protection."6 Moreover, if necessity is demonstrated, an expert under this privilege can be compelled to give only previously formed opinions and cannot be required to engage in any additional preparation.

The Wisconsin Supreme Court adopted the broad qualified privilege for experts as set forth by the Iowa Supreme Court in Mason v. Robinson, supra n. 6, and held that:

. . .absent a showing of compelling circumstances, an expert cannot be compelled to give expert testimony whether the inquiry asks for the expert's existing opinions or would require further work . . .. Finally, if the party seeking an expert's opinion is able to show a compelling need for the expert's opinion, an expert can only be compelled to give existing opinions. Under no circumstances can an expert be required to do additional preparation. We believe that this approach strikes a balance between a litigant's need for irreplaceable or unique testimony, and the expert's right to be free from compulsion.7

In the Alt case, the Supreme Court further observed that Dr. Acosta was not a unique witness because, although he did provide prenatal care to the plaintiff, he was "no more and no less qualified than any other obstetrician to give an expert opinion" on the problems encountered during the delivery. Accordingly, the district court erroneously exercised its discretion in imposing sanctions.

In Mason, the Iowa Supreme Court also analyzed cases from other jurisdictions and pointed out that four jurisdictions (New York, Massachusetts, Pennsylvania, and California) have adopted the broad rule that experts cannot be compelled to give testimony based solely on their expertise.8

Although the Iowa Supreme Court did not follow the New York approach, which totally excused an unwilling expert from testifying, neither did the Court believe that a litigant should have an unlimited power to compel expert testimony. The Court stated:

In contrast to factual witnesses who possess knowledge which is unique and many times irreplaceable, expert testimony is not based on any singular personal knowledge of the disputed events. Rather it depends upon specialized training or other acquired knowledge that allows the expert to draw inferences and form conclusions. Since in most areas of expertise, many individuals possess the necessary qualifications to render expert opinions, this kind of testimony is usually duplicable. Consequently, unlike factual testimony, expert testimony is not unique and a litigant will not usually be deprived of critical evidence if it cannot have the expert of his choice.

The Court was also concerned about the abuse that could arise if litigants could compel experts to testify. The Court acknowledged that numerous individuals could be subject to the demands of litigants, that most claims would benefit from expert testimony, and that parties could routinely issue subpoenas compelling expert testimony. The Court concluded that it would take a "middle ground" between total excuse from testimony and unlimited compulsion of expert testimony from a stranger to the litigation.

The Court also noted that "the distinction between previously formed opinions and those requiring preparation does not serve as a sufficient justification for the abrogation of an expert's right to freely contract for his services." If the party seeking testimony can affirmatively demonstrate a "compelling necessity" for an expert's testimony," an expert can be compelled only to give previously formed opinions and cannot be required to engage in any out of court preparation." Thus, the Court in Mason held that since the plaintiff did not refute the expert's affidavit, which established that other physicians in the state were qualified to render expert opinions in the medical malpractice action, and since the plaintiff did not demonstrate a compelling necessity for the particular expert's testimony, the trial court erred in forcing the expert to testify.

Perhaps the most famous case to hold that an expert can be compelled to testify under certain limited conditions is Kaufman v. Edelstein, 539 F.2d 822 (2nd Cir., 1976), the government civil antitrust case against IBM in the Southern District of New York. The government subpoenaed two accounting experts to testify on the relevant aspects of the computer industry. Neither expert wanted to testify and moved to quash the subpoenas. The district court denied the motion to quash, and the appellate court held that the district court had the discretion under the circumstances to refuse to quash the subpoenas. The appellate court noted that the case was unique, as it was an attempt by the United States to require a member of the public to testify in a major government antitrust case, a case which, by definition "greatly affects the commonweal ... ." Moreover, the government agreed to restrict the expert's testimony to events which occurred between 1960 and 1972, or prior to the suit.

In its opinion, the 2nd Circuit set forth the "appropriate factors" for consideration as to when an expert would be compelled to testify. Among these factors were the following:

The possibility that, for other reasons, the witness is a unique expert; the extent to which the calling party is able to show the unlikelihood that any comparable witness will willingly testify; the degree to which the witness is able to show that he has been oppressed by having continually to testify; and, undoubtedly, many others.

 
"Can counsel for a party subpoena an unwilling expert to testify at trial?"

In view of the explosion in litigation in recent years, along with the concomitant increase in demand for experts of all types, the wisest policy is to craft a reasonable middle ground and balance the right of an expert who has no interest in the litigation to be free from compelled testimony, against the right of litigants to obtain evidence essential to the prosecution or defense of a claim. Thus, the standards set forth by the Wisconsin Supreme Court in Alt, supra, and the Iowa Supreme Court in Mason, supra, seem to strike the right balance so that experts should be forced to testify only where (1) there is a compelling need for that expert's opinion on a material issue, (2) the expert is truly unique and there are no available substitutes, and (3) the expert will not be required to do any new or additional work, but will testify only as to work previously done. When this issue is squarely presented to the Minnesota Supreme Court, therefore, the opinions from our sister states can provide instructive models for decision.

1. See Buchanan v. American Motors Corp., 697 F.2d 151 (6th Cir. 1983); Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974); Commonwealth v. Vitello, 327 N.E.2d 819 (Mass. 1975); and In Re Estate of Mark Rothko, 362 N.Y.S.2d 673 (NY, 1974).

2. See Bush v. Winter, 402 N.W.2d 229 (Minn. App. 1987).

3. 589 N.W.2d at 26.

4. See Ondis v. Pion, 497 A.2d 13 (R.I. 1985); People v. Thorpe, 296 N.Y. 223, 72 N.E.2d 165 (N.Y. 1947); Stanton v. Rushmore, 112 N.J.L. 115, 169 A. 721 (1934).

5. Philler v. Waukesha County, 120 N.W. 829 (Wis. 1909); and Reed v. Fetherston, 785 F.Supp. 1352, 1353 (E.D. Wis. 1999).

6. Mason v. Robinson, 340 N.W.2d 236, 242 (Iowa l983). See also Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 56061 (7th Cir. 1984).

7. 589 N.W. 2d at 27.

8. See Kraushaar Brothers and Co., Inc. v. Thorpe, 72 N.E.2d 165 (N.Y. 1947); Commonwealth v. Vitello, 327 N.E.2d 819, 827 (Mass. 1975); Braverman v. Braverman, 91 A.2d 226, 227 (N.J. 1952); Pennsylvania Co. v. City of Philadelphia, 105 A.630 (Penn. 1918), and Agnew v. Parks, 343 P.2d 118, 123 (Cal. 1959).