Motion to Compel Disclosures of Expert Opinion in South Dakota

“Pretrial discovery relating to expert witnesses is generally governed by SDCL 15-6-26(b), which provides in relevant part:

‘A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.’”

(Weber v. Rains, 933 N.W.2d 471, 478 [S.D. 2019] quoting SDCL 15-6-26(b)(4)(A)(i).)

“The provisions of SDCL 15-6-26(e) further impose a continuing obligation upon parties to supplement their earlier responses if they were either incomplete or ‘if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.’” (Weber v. Rains, 933 N.W.2d 471, 478 [S.D. 2019] quoting SDCL 15-6-26(e)(1) - (2).)

What Constitues Sanctionable Failure to Disclose Expert Discovery?

“We have identified the following areas of concern to consider when assessing the impact of a party’s failure to fully disclose an expert’s opinion:

1. the time element and whether there was bad faith by the party required to supplement;
2. whether the expert testimony or evidence pertained to a crucial issue; and
3. whether the expert testimony differed substantially from what was disclosed in the discovery process.”

(Weber v. Rains, 933 N.W.2d 471, 481 [S.D. 2019].)

Case Law Discussing Changes to Expert Discovery

“When the substance of the expert witness's testimony is alleged to have changed or expanded beyond the scope of discovery, our holdings take into consideration the degree of any such change or expansion.” (Kaiser v. University Physicians Clinic, 724 N.W.2d 186, 196 [S.D. 2006][internal citations omitted].)

“We have upheld a circuit court's ruling granting a new trial as being within its discretion when a party failed to supplement per the provisions of SDCL 15-6-26(e) that its expert witness had changed his opinion two weeks prior to trial.” (Kaiser v. University Physicians Clinic, 724 N.W.2d 186, 196 [S.D. 2006] citing Fullmer v. State Farm Ins. Co., 498 N.W.2d 357, 361-62 [S.D. 1993][noting that in bifurcated trial, insurer's expert witness's change in testimony "whipsawed" plaintiff with inconsistent positions taken by insurer in two trials as to cause of plaintiffs injury ].)

“However, when an expert witness's testimony did not change and interrogatories included the fact that the expert's testimony would be based on examination of similar undamaged equipment as that involved in the case, but failed to seasonably supplement where testing of similar equipment would be conducted, we have upheld the circuit court's discretion to admit such evidence.” (Kaiser v. University Physicians Clinic, 724 N.W.2d 186, 196 [S.D. 2006].)

Understanding Scope of Discovery for Motions to Compel Discovery

“The scope of pretrial discovery is, for the most part, broadly construed.” (Kaarup v. St. Paul Fire Marine Ins. Co., 436 N.W.2d 17, 19 [S.D. 1989] citing Bean v. Best,76 S.D. 462, 80 N.W.2d 565 [1957].)

“SDCL 15-6-26(b) provides, ‘Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . .’ A broad construction of the discovery rules is necessary to satisfy the three distinct purposes of discovery:

1. narrow the issues;
2. obtain evidence for use at trial;
3. secure information that may lead to admissible evidence at trial.

(Kaarup v. St. Paul Fire Marine Ins. Co., 436 N.W.2d 17, 19 [S.D. 1989] citing 8 C. Wright and A. Miller, Federal Practice and Procedure, § 2001 [1970].)