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Vexing Questions: Deposing Percipient "Experts" in Oregon

Authors: David Markowitz and former Markowitz Herbold litigator Lynn Nakamoto

The deposition of a percipient witness, that is, an actor or viewer of events, who has expertise in a particular subject matter or who is a licensed professional is a familiar event, both in malpractice actions and in other cases. As to some areas of deposition testimony, such a percipient witness clearly testifies about “fact,” such as dates of services, conversations and statements, and other occurrences. In other areas, though, the demarcation between “fact” and “opinion” can quickly become blurry. Discerning whether the witness is giving “expert opinion” testimony rather than “fact” testimony is made particularly difficult when the witness is asked to testify about an opinion that he or she previously formed, the earlier opinion was based on expertise, and the opinion itself is a relevant historical fact. Nevertheless, the distinction between testimony as an “expert” and as a percipient witness matters because of Oregon’s unique “no-expert discovery” practice. Not surprisingly, disputes at depositions often arise regarding the proper scope of the questions directed to percipient witnesses who have expertise. We offer an overview of the rules and some case law to consider when you find yourself preparing for such depositions in Oregon cases.

I. When are percipient witnesses testifying as “experts”?
The primary Oregon evidence rule governing opinion testimony by percipient witnesses is OEC 701, ORS 40.405, which provides,

If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of testimony of the witness or the determination of a fact in issue.

Its federal counterpart is Fed. R. Evid. 701. Both were in substance identical until a 2000 amendment to FRE 701, which added an express condition to permissible “lay” opinion testimony. Such testimony could not be “based on scientific, technical, or other specialized knowledge within the scope of Rule 702 [governing expert testimony].” In part, the rule was amended to prevent parties from circumventing reliability requirements in Rule 702. See Advisory Committee note to 2000 amendment to FRE 701. Federal courts since 2000 have begun to consider opinions of percipient witnesses based in part on expertise as expert testimony, regardless of when the witness formed the opinion, or in what context. E.g., Musser v. Gentiva Health Services, 356 F.3d 751, 757 n.2 (7th Cir. 2004).

However, neither OEC 701 nor the pre-2000 federal rule by their terms prohibit percipient witnesses from testifying concerning opinions that they formed in part based on their expertise, when rationally based on their personal knowledge and helpful to a clear understanding of their testimony. Thus, under the old version of Rule 701, federal courts regularly approved of treating physicians and other professionals testifying at trial as percipient witnesses to opinions formed because of or based on a combination of their expertise and their personal knowledge of the facts.

In some cases, the witnesses testified to opinions that they had previously developed during the regular course of business, not in anticipation of litigation. E.g., Richardson v. Consolidated Rail Corp., 17 F.3d 213, 218 (7th Cir. 1994). In other cases, courts did not require the witness’s opinion to be historical, and allowed opinions formed for the litigation if based on personal observations, and if the witness possessed sufficient knowledge or experience to form the opinion. A frequently cited example is Teen-Ed, Inc. v. Kimball Int’l, Inc., 620 F.2d 399, 402-04 (3d Cir. 1980) (the plaintiff’s accountant could testify under Rule 701 in a breach of contract action regarding his calculation of lost profits because of personal familiarity with the books). See also Asplundh Mfg. Division v. Benton Harbor Engineering, 57 F.3d 1190 (3d Cir. 1995).

No Oregon appellate cases have affirmed whether a percipient witness may only testify under OEC 701 concerning opinions formed before the litigation based in part on expertise, or whether a percipient witness may also testify regarding new opinions formed in connection with the litigation, if based on personal knowledge. In fact, only a few reported Oregon cases address OEC 701 in any detail, and they do not shed much light on the issue at hand. See State v. Lerch, 296 Or. 377, 383-87, 677 P.2d 678 (1984) (noting that OEC 701 provides a “liberal standard for the admissibility of lay opinions” and holding that the trial court correctly admitted opinion testimony of a police detective as to what caused a stain and of a war veteran as to the nature of an odor he noticed); State v. Tucker, 315 Or. 321, 845 P.2d 904 (1993) (in his concurring opinion, Justice Unis discussed the elements of personal knowledge, rational connection, and helpfulness required for “lay” opinion testimony in some detail); State v. Wright, 323 Or. 8, 17-18, 913 P.2d 321 (1996) (specifically approving some of that exegesis).

Several cases from other jurisdictions suggest that opinions on new facts, or on issues specific to the litigation, such as the standard of care, implicate expert opinion testimony. In that sense, they support objections to such questioning in Oregon. On the other hand, in both cases the courts would permit deponents to be questioned as to such opinions during the phase of discovery devoted to percipient witnesses and not to retained experts. Thus, they were treated as a hybrid of both percipient and expert witnesses, and deposing lawyers were given wide latitude to explore the opinions they held, when based on the witness’s first-hand knowledge or observations.

In Kekelik v. Hall-Brooke Hospital, No. X05CV980169297S, 2000 WL 1918016 (Conn. Super. Ct. Dec. 15, 2000), a malpractice action, the trial court denied a motion for a protective order that the defendant hospital sought to prevent the plaintiff from eliciting expert opinion testimony from the hospital’s physicians in depositions regarding the standard of care, and their compliance with that standard of care. Although the physicians had not been designated as experts yet, the court rejected the defendant’s contention that such questions were beyond the scope of permissible discovery and would constitute improper expert discovery. Id. at *1. Among other grounds, the court cited that there was no prohibition of such questioning in the practice rules; allowing the questioning was in accord with liberal discovery under the rules; litigants are permitted to use the opinions of treating physicians to establish the standard of care, breach, and causation in Connecticut; the plaintiff’s counsel had agreed that such questioning would not encompass what the witnesses learned about the standard of care from counsel or from review of materials in the litigation; and the witnesses were not consulting experts, but instead would be trial witnesses. Id. at *4. However, the trial court also suggested in passing that such testimony could be “expert” testimony that ought to be paid for. Id.

In a different context, the California Supreme Court in Schreiber v. Estate of Kiser, 989 P.2d 720 (1999), also focused to some degree on the ability of counsel to fairly question percipient witnesses with expertise. Schreiber was an auto accident case, and the issue at trial was whether the accident caused the plaintiff’s injuries. The plaintiff designated treating physicians as experts, but did not serve expert declarations disclosing the testimony as required for retained experts. The trial court granted a motion in limine to exclude any expert opinion testimony, including causation testimony, by the treating physicians. The California Supreme Court disagreed with the Court of Appeals’ holding that once the treating physician opined regarding causation, he converted from a percipient witness into a retained expert whose testimony had to be disclosed in a declaration. 989 P.2d at 722.

Rather, the Supreme Court held that a treating physician is a “percipient expert” who may provide both fact and opinion testimony, id. at 723, and that such witnesses “are subject to no special discovery restrictions.” Id. at 725. Thus, the court concluded that treating physicians could be identified and deposed early in the litigation, and that defendants had a strong incentive to do so. Id. The court held that such a witness “may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience,” including as to “causation and standard of care because such issues are inherent in a physician’s work.” Id. at 726. The California high court’s solution avoided the need for trial courts to parse whether the witness is giving expert opinion or percipient testimony at any particular point in a deposition, which it described as a “near impossible task.” Schreiber, 989 P.2d at 726.

We are aware that litigants in Oregon often frame the issue as whether a witness has been asked a question requiring expert testimony. Our understanding of the developing practice is that attorneys defending depositions will permit percipient witnesses with expertise to state whether they previously formed opinions and the substance of such opinions based on their personal knowledge, what information they had or lacked, and how they formulated the opinions. But, questions concerning opinions formed in anticipation of litigation, or requiring the witness to form opinions at the deposition based on hypothetical additional or modified facts, beyond the witness’s personal knowledge, are the subject of dispute. Likewise, objections are raised when the witnesses are asked to adopt or reaffirm previous opinions or recommendations, because the deposing lawyer is eliciting expert testimony that is not discoverable. Our understanding is that some Oregon trial courts agree, and will grant protective orders to bar such questions.

However, it remains to be seen how Oregon appellate courts will construe OEC 701. They could permit wide-ranging deposition testimony by “percipient experts” on opinions based on personal knowledge, along the lines of what was permitted in Teen-Ed and Schreiber, or they could require litigants and the trial courts to determine when a percipient witness has been asked to testify as an expert and enforce the “no-expert discovery” practice on a question-by-question basis. See, e.g., Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993) (depending on the substance of the witness’s testimony, a percipient witness may testify at some points as an expert and at other points as a fact witness); Gubbins v. Hurson, 885 A.2d 269, 277 (D.C. 2005) (percipient witness who testified regarding diagnosis and course of treatment should not have given opinion on cross-examination regarding causation because he was not disclosed as an expert).

If the latter, it is not clear what the dividing line will be (e.g., no opinions formed in anticipation of litigation). Notably, in State v. Lerch, although the Oregon Supreme Court cited to the Teen-Ed decision permitting opinion testimony developed for the litigation, its decision rested on a conclusion that the detective, despite his experience, was not testifying based on any specialized knowledge. 296 Or. at 384-85.

II. Procedure.
Oregon deposition procedure relating to this issue is not clear-cut, either. The safest practice is to get a protective order, but if you are defending a deposition and object to questions that you believe are outside the scope of OEC 701, there appears to be a basis under the deposition rule, ORCP 38, to instruct the witness not to answer without filing a motion for a protective order. (In contrast, FRCP 30 would not permit such an instruction. See, e.g., Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., No. 95 CIV 8833 (RPP), 1998 WL 2829 (S.D.N.Y. Jan. 6, 1998).)

Under ORCP 38 D(3), “a party may instruct a deponent not to answer a question, and a deponent may decline to answer a question, only: (a) when necessary to present or preserve a motion under section E of this rule; (b) to enforce a limitation on examination ordered by the court; or (c) to preserve a privilege or constitutional or statutory right.” In Stevens v. Czerniak, 336 Or. 392, 403, 84 P.3d 140 (2004), the Supreme Court held that Oregon courts have no authority to require expert discovery in civil cases absent a specific provision allowing it. Arguably, the right to be insulated from expert discovery is a “privilege or constitutional or statutory right” within the meaning of ORCP 38D(3)(c). If so, at the deposition of a defendant surgeon, for example, counsel could use ORCP 38 D(3)(c) as the basis for an instruction not to answer questions concerning whether acts or omissions conformed to the applicable standard of care, since classic expert testimony in a typical medical malpractice case includes opinions concerning whether the defendant’s conduct breached the standard of care. See Chouinard v. Health Ventures, 179 Or. App. 507, 512-13, 39 P.3d 951 (2002).

With no settled law on either OEC 701 or the procedure for protecting objections in the discovery context, Oregon litigators retain significant flexibility in handling depositions of percipient witnesses with expertise. We would welcome receiving relevant opinions and orders other section members have obtained from Oregon trial courts for a potential follow up article next year.

This article appeared in the fall 2006 issue of the Oregon State Bar's Litigation Journal.