Motion to Compel Disclosures of Expert Opinion in Arkansas

Background

“Planning effective cross-examination of adversary witnesses is one of a trial lawyer's most important responsibilities in preparation for trial, particularly when the witnesses are experts.” (Rickett, Jr. v. Hayes (1971) 251 Ark. 395, 400 [internal citation omitted].)

Indeed, “[t]he goal of discovery is to permit a litigant to obtain whatever information he may need to prepare adequately for issues that may develop without imposing an onerous burden on his adversary.” (Heinrich v. Harp's Food Stores, Inc. (1996) 52 Ark. App. 165, 169 [finding “[t]hat goal was not met in this case and appellant was denied a fair trial.”])

General Information for Complaints and Motions

Under Ark.R.Civ.P. 37(a)(2), “only ‘the discovering party’ may move for an order compelling discovery.” (Entergy Ark., Inc. v. Francis (2018) 549 S.W.3d 362, 370 citing id.)

“Arkansas Rule of Civil Procedure 26(e)(1) requires a party to supplement her discovery responses in the case of expert witnesses, to identify the identity and location of each person expected to be called as a witness at trial, and the subject matter and substance of his testimony. It is within the trial court's discretion whether to limit the testimony of witnesses, and that discretion will not be second-guessed by the appellate court.” (Graftenreed v. Seabaugh (2008) 100 Ark. App. 364, 371.)

Standard of Review and Burdens of Proof

“A circuit court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed absent an abuse of discretion that is prejudicial to the appealing party.” (Williams v. Baptist Health (2020) 598 S.W.3d 487, 495 citing Hardy v. Hardy (2011) Ark. 82.) “This court has described abuse of discretion as a high threshold that requires not only error but also that the ruling was made improvidently, thoughtlessly, or without due consideration.” (Williams, supra, id., citing Rhodes v. Kroger Co. (2019) Ark. 174.)

“[A reviewing court] will not reverse a circuit court's discovery ruling absent a showing that additional discovery would have changed the outcome of the case.” (Williams v. Baptist Health (2020) 598 S.W.3d 487, 496 citing Worden v. Kirchner (2013) Ark. 509, at 5.)

Meet and Confer Requirement

Ark.R.Civ.P. 26(c) [2017], requires a party filing a motion to compel discovery “to state that it ‘in good faith conferred or attempted to confer with other affected parties.’” (See, id; see also, Entergy Ark., Inc. v. Francis (2018) 549 S.W.3d 362, 370.)

The Court’s Decision

“The goal of discovery is to permit a litigant to obtain whatever information he may need to prepare adequately for issues that may develop without imposing an onerous burden on his adversary. [...] Permissible discovery necessarily revolves around the cause of action alleged by the plaintiff, and from this cause of action, the trial court must fashion its rulings on discovery.” (Turner v. Northwest Ark. Neurosurgery Clinic, P.A. (2004) 84 Ark. App. 93, 106 [internal citations omitted].)

“According to Ark. R. Civ. P. 26(e)(1), a party is under a duty to supplement a discovery response, ‘in the case of expert witnesses, [with] the subject matter on which he is expected to testify, and the substance of his testimony.’ When a party complains about failure to update discovery, the matter lies within the discretion of the trial court.” (Arkansas State Highway Comm'n v. Frisby (1997) 329 Ark. 506, 509 citing Banks v. Jackson (1993) 312 Ark. 232.)