Scheduling Conference, Plaintiff Liability Experts & Defendant Liability Expert
The parties or the court, upon its own motion, will set a case for a Scheduling Conference. The purpose of a Scheduling Conference is to set a time frame for discovery, disclosure of witnesses, disclosure of expert witnesses, motions and other legal filings. Most courts have their own patterned Scheduling Orders. Parties involved in suits are normally not required to attend the Scheduling Conference, but they will need to discuss the time frames of the suit with their attorneys so that no conflicts arise.
The hiring of expert witnesses has developed into a profitable cottage industry in the past twenty years by both the Plaintiff and the Defense bar. A client may ask “Why do we have to hire an expert?”
Experts can provide a level of experience, education and insight into a case that the lay witness does not have. A good expert witness can also tell the story of the Plaintiff’s case in an understandable context which can aid the jury in understanding issues that can be confusing.
Some experts today have become nothing more than hired guns, paid to provide an opinion and offering their testimony to the highest bidder. Hopefully, these experts are not the norm, but the rare exception into the litigation world.
In our example roof fall case, the Plaintiff fell due to the failure of the employer to provide safety equipment. Experts were hired by both the Plaintiff and the Defendant.
The Plaintiff had two experts. The first expert was utilized during the early investigation of the case and his opinion was offered early to the insurance company in an effort to resolve the claim without the expense of litigation.
The first expert was Richard Csamer, and he found that the Defendant was operating as a contractor in violation of West Virginia law and failed to be compliant with the requirements of OSHA.
The second expert retained by the Plaintiff was Donovan Grenz, who had an extensive background in the training and implementation of OSHA regulations in the work place.
Under the West Virginia Rules of Civil Procedure Rule 26(b)(4), a party shall disclose to the other side their expert, his/her qualifications, the facts that he relies upon and the basis of his opinions.
The Defendant in a civil lawsuit has the right to hire experts to aid in their presentation of the defense case in the trial. The Plaintiff, having the burden, will disclose their expert(s) first in the discovery process. The Defendant, usually within thirty (30) day of receiving the Plaintiff expert disclosure, is required to disclose any experts they have retained who will testify at the trial.
Courts have often allowed the Plaintiff an additional thirty (30) days in which to provide disclosure of any rebuttal experts. The expert disclosure should follow West Virginia Rules of Civil Procedure Rule 26 and 26(b)(4), however, some lawyers try to be crafty and won’t provide a complete disclosure. This is discouraged by the West Virginia Supreme Court and by the Trial Court Judges, but unfortunately, it occurs.
The Defendant in this case hired an expert who owned and operated a roofing company in Harrison County, West Virginia. This witness was going to testify that he personally did not use safety equipment as required by OSHA and that no one used the required safety equipment. The Defendants argument was that no one in the roofing business uses the required safety equipment for roofers and therefore the Defendant should not be responsible.
The Plaintiff’s Counsel sought specific discovery of their expert witness by sending discovery requests to flush out this expert.