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33 NEW ORLEANS BAR ASSOCIATION Procrastinators Program Pan American Life Building December 27, 2016 New Orleans, Louisiana USE OF EXPERTS AND SPECIAL MASTERS IN DOMESTIC CASES STEVEN J. LANE HERMAN, HERMAN & KATZ, L.L.C. 820 O Keefe Avenue New Orleans, Louisiana Telephone: (504) Facsimile: (504) slane@hhklawfirm.com

34 TABLE OF CONTENTS Page I. Legal Authority for Appointment of Experts II. Is the Appointment of an Expert Necessary? III. Criteria to Select or Appoint Experts IV. Daubert 8 V. Evidentiary Law Applicable to Experts..16 VI. Documents and Pleadings You Need to Obtain and/or Provide to the Expert / Special Master in Order to Survive a Daubert Challenge 23 VII. Questions for Expert Witness in Daubert Hearing. 28 VIII. Differing Credentials Among Experts. 40 IX. Applicable Law Regarding the Appointment and Use of Special Masters. 43 X. Absolute Immunity for Special Masters.. 44 XI. Miscellaneous Domestic Rules, Forms and Cases... 50

35 I. LEGAL AUTHORITY FOR APPOINTMENT OF EXPERTS As it relates to the appointment of experts in connection with the partition of community property, court authority is found in La. R.S. 9:2801(A)(3), which states as follows: The court may appoint such experts pursuant to Articles 192 and 373 of the Louisiana Code of Civil Procedure as it deems proper to assist the court in the settlement of the community and partition of community property, including the classification of assets as community or separate, the appraisal of community assets, the settlement of the claims of the parties, and the allocation of assets and liabilities to the parties. La. C.C.P. art. 192 states: A. The appointment of expert witnesses is controlled by Louisiana Code of Evidence Article 706. B. The reasonable fees and expenses of these experts shall be taxed as costs of court. La. C.C.P. art. 373 states: An expert appointed by a trial court to assist it in the adjudication of a case in which his special skill and knowledge may aid the court is an officer of the court from the time of his qualification until rendition of final judgment in the case. As it relates to the appointment of mental health experts in custody cases, the applicable law is found in La. R.S. 9:331, which states as follows: A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable. B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party. 1

36 A mental health professional may be granted absolute immunity from liability in tort in connection with evaluations they perform in custody proceedings. In the case of S.T.J. v. P.M., et al, 556 So.2d 244 (La. App. 2 nd Cir. 1990), the Trial Court had appointed three psychologists to serve as mental health professionals in order to perform evaluations and to render a report as to whether or not a child had been sexually abused by his stepfather. The experts concluded that the minor child had not been abused by the stepfather. The natural father of the child, who had made the accusation of sexual abuse by the stepfather, sued the mental health professionals for damages for the tortious loss of his relationship with his son, as well as for the experts negligence. The Second Circuit Court of Appeal affirmed the Trial Court in dismissing the father s suit and stated as follows: LSA-C.C.P. art. 373 provides that an expert appointed to assist the court in the adjudication of a case through his special skill and knowledge is an officer of the court from the time of his qualification until the rendition of a final judgment in the case. Clearly then, appointed psychologists are non-judicial persons fulfilling quasijudicial functions and are classified as officers of the court with functions intimately related to the judicial process. Hence, as in Meyers v. Morris, 810 F.2d 1437 (8th Cir. 1987), abrogated by Burns v. Reed, 500 U.S. 478 (1991), they are entitled to absolute immunity protecting them from having to litigate the manner in which they perform those functions. Should they be found unprotected from such immunity, it can be envisioned that psychologists would seek to avoid future court appointments and that fear of civil liability could mar the opinions and recommendations given to the court. 1 1 See also Faust v. Pesses, 164 So. 3d 920 (La. App. 4th Cir. 2015) (social worker, appointed by the court to prepare a child custody evaluation, was entitled to absolute immunity); Haley v. Leary, 88 So. 3d 1193 (La. App. 4th Cir. 2012); Todd v. Angelloz, 844 So. 2d 316 (La. App. 1st Cir. 2003) (psychologist, appointed by the court to evaluate a husband in divorce proceeding, was entitled to judicial immunity). 2

37 When mental or physical condition is at issue in a custody case, the Court also has authority to appoint experts pursuant to Louisiana Code of Civil Procedure Article 1464, which states as follows: When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law. In addition, the court may order the party to submit to an examination by a vocational rehabilitation expert or a licensed clinical psychologist who is not a physician, provided the party has given notice of intention to use such an expert. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. If an expert is appointed pursuant to Article 1464, then a report should be rendered pursuant to La. C.C.P. art. 1465, as follows: A. If requested by the party against whom an order is made under Article 1464 or by the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court may exclude his testimony if offered at the trial. B. By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition. 3

38 C. This Article applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This Article does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule. Insofar as it relates to the proposed relocation of minor children, the Trial Court has authority to appoint a mental health expert pursuant to La. R.S. 9:355.15, as follows: The court, on motion of either party or on its own motion, may appoint an independent mental health expert to render a report to assist the court in determining the best interest of the child. A trial court is not required to obtain an independent mental health expert to determine if a proposed out-of-state relocation of children with their mother is in their best interest where the father could have, without a court order, obtained expert evidence relating to the negative impact that may have resulted from the relocation. See Jarnagin v. Jarnagin, 25 So. 3d 1028, 1034 (La. App. 3d Cir. 2009). 2 II. IS THE APPOINTMENT OF AN EXPERT NECESSARY? A trial court is not required to appoint an independent mental health expert to determine if proposed out-of-state relocation of children with a parent is in their best interest. This is especially so in the situation in which the other spouse could have, even without a court order, obtained expert evidence relating to the negative impact of a relocation. See Jarnagin v. Jarnagin, 25 So.3d 1028 (La. App. 3d Cir. 2009). In Jarnagin, the father appealed a trial court ruling and claimed that the trial court erred by failing to appoint a mental health expert to determine whether relocation was in the 2 See also Jaligam v. Pochampally, 115 So. 3d 694, 698 (La. App. 4th Cir. 2013) (the trial court acted within discretion when it excluded the testimony of a party s expert, where the court never requested and neither party moved the court to request a relocation evaluation). 4

39 best interest of the minor children pursuant to La. R.S. 9: Now, La. R.S. 9: provides that a court may appoint an independent mental health expert to render a report to assist the court in determining whether a proposed relocation is in the best interest of the child. 3 The Court of Appeal noted that, while the statute does allow the trial court to appoint an independent expert, should the court refuse to appoint an independent expert, the law does not prohibit a party from presenting the testimony of a mental health expert. Therefore, the court reasoned that, because the defendant/father could have, without a court order, obtained expert evidence relating to what negative impacts might result from the child s relocation, it could not be said that the trial court erred in not appointing a mental health expert. See also Larsen v. Polk, 841 So.2d 992 (La. App. 5th Cir. 2003). As a practical matter, you always need to ask yourself in a custody proceeding whether the facts are such and the medical condition of the parties and/or child is such that psychological testing is necessary. Many of the tests used by mental health professionals in custody proceedings do not address the issues that are most relevant to a child custody determination, such as parenting ability; the willingness of each parent to promote or facilitate a relationship with the other parent; the nature and quality of the relationship between each parent and the child, etc. 3 Note that in 2012, La. R.S. 9: was re-numbered from La. R.S. 9:355.8, and pre-2012 decisions cite the older version. The statute was also amended to clarify the court s authority to make an appointment on its own motion as well as on motion of either party and to expressly limit the expert s role to rendering a report that, in turn, would assist the court in determining the best interest of the child. See 2012 La. Sess. Law Serv. Act 627 (S.B. 153). 5

40 Some judges take the position that, unless and until they are given proof that the parties or the children have psychological issues, appointment of an expert is unnecessary. Many judges feel that they are just as capable of sifting through the factors set out in La. C.C. art. 134 on making a factual determination as to the type of custody arrangement that is in the best interest of the children. This is especially so, considering the presumption in favor of joint custody. La. C.C. art III. CRITERIA TO SELECT OR APPOINT EXPERTS Before you select or agree to the appointment of an expert or special master, you need to be mindful of the fact that the Trial Court is going to be afforded broad discretion in its reliance upon and application of expert reports and special master recommendations. With or without an expert, the Trial Court has broad discretion in partitioning community property. If a Trial Court s valuation of community assets are reasonably supported by the record and do not constitute an abuse of discretion, its determinations should be affirmed. For purposes of valuing community property in a partition action, the Trial Court choice of one expert s method of valuation over that of another will not be overturned unless it is manifestly erroneous, and the Trial Court is not bound to accept one expert s opinion to the exclusion of the opinion of other experts. Ellington v. Ellington, 842 So.2d 1160, (La. App. 2d Cir. 2003). The marketplace is glutted with people holding themselves out as experts who are unqualified to give an opinion. Judges traditionally accept individuals as experts but give 6

41 their opinions only minimal weight if the expert has a reputation for incompetence, bias, being a hired gun, etc. Experts who take on the role of advocates for a particular side or who clothe themselves in an aura of infallibility should be avoided. They will leave the court with a negative impression. Look for an expert with a reputation for honesty and long-term experience in his field of expertise. He should have high educational and professional credentials as well as strong communication skills. You must not only investigate the credentials of your expert, but those of your opponent as well. Your sources of investigation should include other attorneys, Expert Materials sections of Lexis and Westlaw, 4 other experts, trial transcripts, etc. It is not unusual for experts to differ in their opinions. However, well-qualified experts should be in the same ballpark in their findings. If there is a great difference in the experts opinions, one of them is way off and it may be yours. Carefully review your expert s opinion and make sure it makes sense so that a judge can understand it. In the context of a custody case, you have three choices: retaining a hired gun, requesting that the court appoint an expert, or using an expert on whom both parties agree. The manner of choosing an expert is tempered by the facts of the case. For example, if the parties do not get along, the chances are slim that they will be able to agree on retaining an expert or asking the court to appoint one. If one of the parties already has an expert, then you are in a similar situation. If there is great financial disparity between the parties, then you 4 Note that the Expert Materials section, if included in your subscription, will often contain the transcripts of expert depositions and trial testimonies. 7

42 may have no alternative but to request a court appointed expert if your client cannot afford to retain one on his or her own. Arguments can be made for or against choosing one of the three types of experts. Regardless as to which procedure is used and what type of expert is chosen, the threshold factors are that the expert must be independent enough, and that his opinion is believable and substantially qualified educationally, professionally, and communicationally such that the court gives his opinion the weight it deserves. IV. DAUBERT After you have taken into account the law applicable to the appointment of experts and special masters and the criteria that you should use to determine whether you wish to select or have the court appoint a particular expert or special master, you may then deal with the issue as to whether the expert or special master s opinion will be admitted into evidence. In determining whether to admit an expert s opinion into evidence, the Trial Court must take into consideration the cases of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct (1999). These cases set out the legal guidelines by which a judge must exercise his or her gatekeeping capacity in determining whether an expert opinion should be admitted into evidence. These cases allow you to attack an expert s methodology and approach in any family law case notwithstanding his or her expertise and/or the substance of the opinion rendered. The United States Supreme Court decision in Daubert modified the procedure and philosophy concerning the admissibility of expert testimony at trial. Previously, an attorney 8

43 could assume that his expert s testimony would be admitted into evidence after laying a basic foundation as to the expert s background and prior experience giving trial testimony. As a result of Daubert and, subsequently, Kumho Tire, there is a heightened level of scrutiny that a trial judge is obligated to consider prior to admitting expert testimony at trial. The court now has the responsibility to make an initial determination as to whether expert testimony should be admitted. Daubert requires that the methodology underlying the expert s testimony, as well as its application to the facts of the case, be valid. Further, in Kumho Tire, the Supreme Court held that the judge s general gatekeeping obligation requires an analysis of any not just scientific expert evidence that is based on technical and other specialized knowledge. In general terms, the nonexclusive factors set out in Daubert and Kumho Tire, not all of which are applicable to family law cases, include the following: 1. Does the methodology test the technique or theory to see if it can be validated? 2. Has the technique or theory been published and peer reviewed? 3. What is the rate of error of methodology? 4. Has the technique or theory been generally accepted in the relevant community? A testifying expert must be prepared to support his conclusions in methodology with proven theories, research, and acceptance in the field at issue. For this reason, before retaining an expert, whether a psychologist in custody disputes or a valuation expert in a community property partition, you should have a thorough discussion with your proposed expert on the following nonexclusive issues: 9

44 1. Whether the theory or technique that the expert will employ can be or has been tested; 2. Whether the expert s theory or technique has been subjected to peer review and publication; 3. Whether there is a known or potential error rate of the theory or technique to be used by the expert; 4. Whether there has been a general acceptance within the relevant community of the theory or technique to be used by the expert; 5. The extent to which the expert s technique relies upon the expert s subjective interpretation; 6. The expert s credibility insofar as it affects his or her reliability. At some point in time prior to trial, you should file a Daubert motion to challenge the admissibility of the opposing expert s testimony. Similarly, you need to be prepared to defend your expert against a similar motion. Even if you do not file a Daubert motion prior to trial, you can still attack the methodology and approach of the opposing expert. Since all family law cases in the State of Louisiana are tried to a judge, the judge can certainly make a decision during trial or as part of the final judgment that the opposing party s expert did not meet the admissibility factors of Daubert and/or Kumho Tire. The Daubert/Kumho test does not directly address the issue of the qualifications of the expert witness but rather the methodology to which the expert reaches his or her opinion. However, the Louisiana Supreme Court did address the qualifications of the expert in conjunction with the Daubert test in the case of Cheairs v. State ex rel DOTD, 861 So.2d 536, 542 (La. 2003) by adopting a three-prong test that had previously been cited by the Eleventh Circuit Court of Appeal in Alabama in the case of City of Tuscaloosa v. Harcos 10

45 Chemicals, Inc., 158 F.3d 548 (11th Cir. 1998). The three-prong test was to the effect that the admission of expert testimony would only be proper if all of the following were true: (1) the expert is qualified to testify competently regarding the matters he or she intends to address; (2) the methodology by which the expert reaches his or her conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. When the Trial Court makes a Daubert inquiry, the issue before the court is the methodology employed by the expert witness. Was the methodology proper and appropriate? The court, however, should not inquire into the application of the methodology to the facts of the case or to the expert s ultimate opinion derived from the methodology until trial on the merits. Note that Louisiana Code of Evidence Article 702 does not expressly make that distinction. Instead, Article 702 lists reliable application of the methodology to the facts of the case as last of the four prerequisites for permitting expert testimony. This may explain some litigants temptation to attack the expert s application of the methodology to the facts and his or her ultimate conclusions in a Daubert motion. However, exclusion of an expert, based on the opponent s challenge to the application of the methodology to the facts of the case, is reversible error. See Dinett v. Lakeside Hosp., 811 So.2d 116, 119 (La. App. 4th Cir. 2002). In other words, the issue at a Daubert hearing is whether the expert s method used to arrive at his or her opinion is valid. The Daubert hearing does not deal with the issue of the ultimate conclusion derived by the expert from the methodology he or she employed. The 11

46 court should not deal with the merits of the expert s opinion until the witness s methodology has passed the Daubert test. If the expert s methodology does not pass the Daubert test, then the merit question of the substance of the expert s opinion does not become an issue because the expert would not be permitted to testify using an excluded methodology. As to the question of whether the Daubert test should be addressed prior to trial or during trial, I would submit that the Daubert inquiry should occur at a preliminary hearing before the expert testifies. In fact, I believe that the Daubert hearing should take place before the trial begins, for both jurisprudential and practical reasons. The Kumho Tire decision had clarified that a Trial Court should have wide discretionary latitude in deciding whether or when special briefings or other proceedings are needed to investigate reliability of an expert. Kumho Tire Co., Ltd., 526 U.S. at 152 (emphasis added). Despite this broad discretion, a trial judge, in exercising the gatekeeping function, must make a preliminary assessment as to whether the methodology underlying the expert s testimony is scientifically valid and can be properly applied to the facts of the case. State v. Hampton, 183 So.3d 769, 775 (La. App. 4th Cir. 2015). Therefore, a Trial Court must, at a minimum, create a record of its Daubert inquiry and articulate its basis for admitting expert testimony. Carlson v. Bioremedi Therapeutic Systems, Inc., No , 2016 WL , at *4 (5th Cir. May 16, 2016) (interpreting F. R. Evid. 702, identical to La. Code Evid. art. 702). Because admissibility of expert testimony hinges on this preliminary gatekeeping requirement, common sense dictates that a Daubert hearing must take place before the expert testifies as to the merits of the case. This will afford the court a timely and sufficient 12

47 opportunity to analyze the evidence tendered on the issue of expert s methodology, to articulate the basis for its ruling, and to avail itself, if necessary, of the provisions of La. C.C.P. art. 373 and appoint an expert to assist with the case. As a further example, consider the case of Doe v. Archdiocese of New Orleans, 823 So.2d 360 (La. App. 4th Cir. 2002). This was a repressed memory case, in which the Court of Appeal held that a Daubert hearing regarding an expert psychologist s opinion on the issue of the validity of the claimant s repressed memories is relevant to a consideration of the methodology used by the expert. However, the court ruled that the Daubert hearing should not address the conclusions reached by the expert in applying his methodology to the facts. The issue before the court in a Daubert hearing is whether the methodology is sound not whether the conclusions of the expert based on that methodology are correct. In this jury case, the Trial Judge noted that it was up to the trier of fact (the jury) to make the ultimate determination as to whether the expert s methodology and opinion were correct, and that the plaintiff suffered from the condition claimed. From a practical standpoint, I would want to know substantially in advance of trial not the day before whether my expert s testimony is going to be admissible. An attorney cannot permit the entirety of his or her case to be gutted by finding out a day or so before trial in a Daubert hearing that the expert they retained months ago is not going to be allowed to testify. If your expert is being challenged in a Daubert hearing, you might want to take a look at the case of Myers v. Myers, 931 So. 2d 1104 (La. App. 4th Cir. 2006), which illustrates a more liberal approach to the introduction of expert testimony notwithstanding Daubert. 13

48 In Myers v. Myers, a divorce proceeding, the court was presented with the issue of whether the Trial Court erred in admitting the expert testimony of a forensic accountant who used data collected solely from one of the litigants to determine the compensation of that litigant. The Fourth Circuit Court of Appeal affirmed the Trial Court s decision, noting that the appellant had failed to show that the expert witness had violated the methodology used by reasonable professionals in ascertaining the information required. Id. at In Myers, the forensic accountant based his report solely on information provided by the husband, who was the subject of the investigation. Id. at Despite the potential for the husband to fraudulently omit critical information, the expert s method was deemed reliable by the court. I submit that in most of your cases, your experts will rely on information from sources other than one litigant, and that the issue of fraud will not be prevalent. As such, you can cite this case as a fairly low threshold over which you must step in order to exceed Daubert requirements. Whether you are selecting an expert or addressing a situation where the court has appointed an expert, there are certain assessments you should make of the expert s testimony before you determine if he or she can meet the Daubert test and is prepared to testify as to the merits at trial. First, you should make a list of all the facts that you believe to be relevant to your case and make a determination as to whether the expert has considered all of these relevant facts, pros and cons. 14

49 Second, in addition to considering all of the relevant facts, you should make an assessment as to whether the facts underlying the expert s opinion are reliable. In other words, are the facts upon which the expert is relying unreliable, partially reliable, more reliable than not, or reliable beyond a reasonable doubt? Third, does the expert understand both the legal and applicable clinical or scientific principles in the case? Does he/she have a complete understanding, or are there certain principles that your expert either does not understand or of which he/she only has a partial understanding? Finally, to the extent that scientific principles are applicable to your expert s opinion, have those scientific principles been tested independently? Have those principles or theories upon which your expert is relying been published in peer-reviewed journals? Are the theories relied upon by the expert generally accepted as reliable by experts in the same field of expertise? Will your expert appear to be objective to the court and are your expert s opinions defensible and reasonable? All of these assessments should be made throughout the development of the case and definitely before trial, while you are preparing the expert s testimony. If any of these considerations or assessments appear to be problematic, then the problem needs to be addressed and solved before a Daubert hearing, well in advance of trial on the merits. DAUBERT-RELATED QUESTIONS YOU SHOULD ASK YOUR EXPERT AT THE OUTSET OF RETENTION 1. What information will you be relying on when you render your opinion? 2. Will you be relying on any scientific principles? 3. Do you know whether these scientific principles have been tested? 15

50 4. Have the scientific principles been subject to peer review and/or scrutiny in professional publications? 5. Do you know whether there is an acceptable rate of error in application of these scientific principles? 6. Is the technique that you will be using to arrive at your opinion generally accepted in your field of expertise? 7. Are the methods that you will be using in reaching your opinion also used by other similarly qualified experts? 8. Why is the methodology that supports the opinion scientifically valid? 9. Can your reasoning and methodology be applied to the facts applicable in this particular litigation? Assuming that all of the above questions are answered properly by your expert, you then are in a position to tender the expert as having an acceptable and scientifically valid methodology, reasoning and analysis which result in an opinion that is relevant to the court and which will assist the trier of fact to better understand the evidence and to make a determination of the facts at issue. V. EVIDENTIARY LAW APPLICABLE TO EXPERTS You must be familiar with the Rules of Evidence, especially as it relates to experts, when dealing with the admissibility of expert testimony. The applicable code articles, civil procedure articles, and case law are as follows: La. C.E. art A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 16

51 (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert has reliably applied the principles and methods to the facts of the case. La. C.E. art The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. La. C.E. art A. Civil Cases. In a civil case, the expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. La. C.E. art A. Civil cases. In a civil case, the court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. B. Disclosure of appointment. In a civil case, in the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. C. Parties experts of own selection. Nothing in this Article limits the parties in calling expert witnesses of their own selection. La. C.C.P. art A. The court shall not order the production or inspection of any writing, or electronically stored information, obtained or prepared by the adverse party, his 17

52 attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. Except as otherwise provided in Article 1425(E)(1), the court shall not order the production or inspection of any part of the writing, or electronically stored information, that reflects the mental impressions, conclusions, opinions, or theories of an attorney. B. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Article 1469(4) apply to the award of expenses incurred in relation to the motion. For purposes of this Paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electronically stored, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. C. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. D. A disclosure of a communication or information covered by the attorney-client privilege or work product protection does not operate as a waiver if the disclosure is inadvertent and is made in connection with litigation or administrative proceedings, and if the person entitled to assert the privilege or work product protection took reasonably prompt measures, once the holder knew of the disclosure, to notify the receiving party of the inadvertence of the disclosure and the privilege asserted. Once notice is received, the receiving party shall either return or promptly safeguard the inadvertently disclosed material, but with the option of asserting a waiver. Even without notice of the inadvertent disclosure form the sending party, if it is clear that the material received is privileged and inadvertently produced, the receiving party shall either return or promptly safeguard the material, and shall notify the sending party of the material received, but with the option of asserting a waiver. 18

53 La. C.C.P. art A. A party may through interrogatories or by deposition require any other party to identify each person who may be used at trial to present evidence under Articles 702 through 705 of the Louisiana Code of Evidence. B. Upon contradictory motion of any party or on the court's own motion, an order may be entered requiring that each party that has retained or specially employed a person to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony provide a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor and the data or other information considered by the witness in forming the opinions. The parties, upon agreement, or if ordered by the court, shall include in the report any or all of the following: exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. C. If the court orders the disclosures of Paragraph B of this Article, they shall be made at the times and in the sequence directed by the court. In the absence of directions from the court or stipulation by the parties, the disclosures ordered pursuant to Paragraph B of this Article shall be made at least ninety days before the trial date or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Paragraph B of this Article, within thirty days after the disclosure made by the other party. The parties shall supplement these disclosures when required by Article D. (1) Except as otherwise provided in Paragraph E of this Article, a party may, through interrogatories, deposition, and a request for documents and tangible things, discover facts known or opinions held by any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under Paragraph B, the deposition shall not be conducted until after the report is provided. 5 Note that subsection (C) was amended in 2014, in response to the Louisiana Court of Appeal, Second Circuit decision in Quillian v. The Dixie Bonded Warehouse, 105 So.3d 71 (La. App. 2d Cir. 2012). The legislature had clarified that Article 1425, contrary to the Second Circuit s opinion, does not require a party to identify testifying experts absent a discovery request or an order requiring an expert report. See La. Sess. Law Serv. Act 655 (H.B. 607) (2014) (official commentary). 19

54 (2) A party may, through interrogatories or by deposition, discover facts known by and opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Article 1465 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (3) Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this Paragraph; and with respect to discovery obtained under Subparagraph (2) of this Paragraph, the court shall also require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. E. (1) The expert's drafts of a report required under Paragraph B of this Article, and communications, including notes and electronically stored information or portions thereof that would reveal the mental impressions, opinions, or trial strategy of the attorney for the party who has retained the expert to testify, shall not be discoverable except, in either case, on a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means. (2) Nothing in this Article shall preclude opposing counsel from obtaining any facts or data the expert is relying on in forming his opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches, or into the validity of the expert's opinions. F. (1) Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court. (2) The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days prior to the trial. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence. For good cause shown, the court may allow live testimony at the contradictory hearing. 20

55 (3) If the ruling of the court is made at the conclusion of the hearing, the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment. If the matter is taken under advisement, the court shall render its ruling and provide written findings of fact, conclusions of law, and reasons for judgment not later than five days after the hearing. (4) The findings of facts, conclusions of law, and reasons for judgment shall be made part of the record of the proceedings. The findings of facts, conclusions of law, and reasons for judgment shall specifically include and address: (a) The elements required to be satisfied for a person to testify under Articles 702 through 705 of the Louisiana Code of Evidence. (b) The evidence presented at the hearing to satisfy the requirements of Articles 702 through 705 of the Louisiana Code of Evidence at trial. (c) A decision by the judge as to whether or not a person shall be allowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence at trial. (d) The reasons of the judge detailing in law and fact why a person shall be allowed or disallowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence. (5) A ruling of the court pursuant to a hearing held in accordance with the provisions of this Paragraph shall be subject to appellate review as provided by law. (6) Notwithstanding the time limitations in Subparagraphs (1), (2), and (3) of this Paragraph, by unanimous consent of the parties, and with approval by the court, a motion under this Paragraph may be filed, heard, and ruled upon by the court at any time prior to trial. The ruling by the court on such motion shall include findings of fact, conclusions of law, and reasons for judgment complying with the provisions of Subparagraph (4) of this Paragraph. (7) The provisions of this Paragraph shall not apply to testimony in an action for divorce or annulment of marriage, or to a separation in a covenant marriage, to a property partition, or to an administration of a succession, or to testimony in any incidental or ancillary proceedings or matters arising from such actions. (8) All or a portion of the court costs, including reasonable expert witness fees and costs, incurred when a motion is filed in accordance with this Paragraph may, in the discretion of the court, be assessed to the non-prevailing party as taxable costs at the conclusion of the hearing on the motion. 21

56 La. C.E. art A. Control by court. Except as provided by this Article and Code of Criminal Procedure Article 773, the parties to a proceeding have the primary responsibility of presenting the evidence and examining the witnesses. The court, however, shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: (1) Make the interrogation and presentation effective for the ascertainment of the truth; (2) Avoid needless consumption of time; and (3) Protect witnesses from harassment or undue embarrassment. B. Scope of cross-examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. However, in a civil case, when a party or person identified with a party has been called as a witness by an adverse party to testify only as to particular aspects of the case, the court shall limit the scope of cross-examination to matters testified to on direct examination, unless the interests of justice otherwise require. C. Leading questions. Generally, leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony and in examining an expert witness on his opinions and inferences. However, when a party calls a hostile witness, a witness who is unable or unwilling to respond to proper questioning, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. Generally, leading questions should be permitted on cross-examination. However, the court ordinarily shall prohibit counsel for a party from using leading questions when that party or a person identified with him is examined by his counsel, even when the party or a person identified with him has been called as a witness by another party and tendered for cross-examination. D. Scope of redirect examination; re-cross examination. A witness who has been cross-examined is subject to redirect examination as to matters covered on crossexamination and, in the discretion of the court, as to other matters in the case. When the court has allowed a party to bring out new matter on redirect, the other parties shall be provided an opportunity to re-cross on such matters. La. C.E. art A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the 22

57 facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion. B. Exceptions. This Article does not authorize exclusion of any of the following: (1) A party who is a natural person. (2) A single officer or single employee of a party which is not a natural person designated as its representative or case agent by its attorney. (3) A person whose presence is shown by a party to be essential to the presentation of his cause such as an expert. (4) The victim of the offense or the family of the victim. C. Violation of exclusion order. A court may impose appropriate sanctions for violations of its exclusion order including contempt, appropriate instructions to the jury, or when such sanctions are insufficient, disqualification of the witness. VI. DOCUMENTS AND PLEADINGS YOU NEED TO OBTAIN AND/OR PROVIDE TO THE EXPERT/SPECIAL MASTER IN ORDER TO SURVIVE A DAUBERT CHALLENGE OR TO OBTAIN COMPETENT RECOMMENDATIONS TO THE TRIAL COURT Community Property and Support Issues Neither an expert nor a Special Master can render a competent opinion to the Court and/or survive a Daubert hearing if they are not provided with the information, documents and/or pleadings necessary to employ the proper methodology in a case. This is so regardless as to whether it is a case of custody, support, partition of community property, valuation of a business, etc. Documents that will or may be relevant to the expert and/or Special Master include but are not limited to the following: 1. All savings bank books, records, accounts and memoranda current, as well as those which may have been cancelled or closed since, whether in your name, individually or in conjunction with any other persons including those of which 23

58 you are a custodian or which were held by any other person for your benefit whether domestic or foreign. 2. All records, papers, memoranda, ledgers, checkbooks, check stubs, bank statements, cancelled checks, deposit slips, and withdrawal slips for each and every checking account, current, as well as those which may have been cancelled or closed since, whether in your name, individually or in conjunction with any other persons including those of which you are a custodian or which were held by any other person for your benefit whether domestic or foreign. 3. All stock certificates, bonds or other securities in your name current, as well as those which may have been cancelled or closed since, whether in your name, individually or in conjunction with any other persons including those of which you are a custodian or which were held by any other person for your benefit whether domestic or foreign. Provide any and all prospectus statements and limited partnership agreements relative to the above investments or any other investments that you may have made. Also provide any and all investor suitability statements executed by you which are current, as well as those which may have been cancelled or closed since, whether in your name, individually or in conjunction with any other persons including those of which you are a custodian or which were held by any other person for your benefit whether domestic or foreign. 4. All books, records, accounts, monthly statements, statements of transactions and all other papers and memoranda of stock and brokerage accounts current, as well as those which may have been cancelled or closed since, whether in your name, individually or in conjunction with any other persons including those of which you are a custodian or which were held by any other person for your benefit whether domestic or foreign. 5. Copies of all Federal, state and city income tax returns together with the schedules and worksheets thereof, and all other papers, documents and memoranda referring to any audit or adjustments made in connection therewith, past and pending. 6. Any and all contracts for the rental and/or lease of safety deposit boxes or vaults, individually or with others, and any and all contracts for the rental and/or lease of safety deposit boxes or vaults to which you have access. 7. Records that related to any secured or unsecured loan made to you, past or present, or to any entity or trust in which you have an interest whether legal or equitable and whether you are the custodian or trustee thereof, whether made by a member of your family, a banking institution, or any other individual or entity. Such records should 24