Delaware Trial Handbook § 12:5. CALLING THE OPPOSING PARTY’S EXPERT WITNESS

As a general rule, one party may not call as a witness an expert retained by an opposing party. The reason for the general rule is that such compelled testimony would force the expert to violate his or her duty of loyalty to his or her employer and would involve a form of involuntary servitude.40 One exception is where one party compels the physical examination of an adverse party41 but declines to call the examining physician as a witness. In such a case, the doctor is deemed to be independent and not in the employ of either party, so the trial court may, in its discretion, allow the adverse party to call the physician to testify as to the contents of the medical report.42 Another exception is where the party calling the witness has no alternative source of expert testimony to support his or her case.43 In these circumstances, the demands of justice exceed the considerations set forth above, which ordinarily will bar such compelled testimony. Moreover, a court may permit one party to call an adverse party’s expert as a witness where it is required in the interests of fairness, such as where the expert is in the possession of unique facts, where the expert is uniquely positioned, the search for truth requires is and other criteria.43.1

Although a party may not call as a witness an expert retained by the opposing party, a party may require an opposing 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.44  If the expert of an adverse is deposed, however, the party adverse to the party whose expert was deposed may be able to introduce the deposition testimony into evidence where the testimony goes to the heart of the case and may have affected the outcome.44.1

The concerns which prevent the compulsion of testimony from experts retained by an  adverse party do not apply to  the compulsion of opinion testimony from the adverse party. Thus, an adverse party may be called to the stand by a party and, if qualified, be asked questions requiring expert opinion.45 A party may be denied the right to do this, however, if that party fails to identify the adverse party as an expert witness in the pre-trial order.46

A party in a civil action has no constitutional right to have the court appoint an expert witness to assist that party,47 although the court has discretionary power to do so.48 A defendant in a criminal action who is represented by private counsel is not entitled to public funds to pay for an expert. An application to the court by private counsel for public funds to pay for an expert on the ground that the defendant is indigent will be deemed an application for leave to withdraw as counsel and for the defendant to be represented thereafter by the Public Defender. Upon a finding of indigence the court will permit private counsel leave to withdraw. Private counsel may continue to assist the Public Defender in defense of the action, if the latter consents, although private counsel will not be entitled to compensation from public funds for such services. Thereafter, the Public Defender may, at his or her option, expend public funds to pay for the services of an expert.49

40. Jones v. Delaware Community Corp. for Individual Dignity, C.A. No. 00C-06-075CJS, slip op. at 17, Scott, J. (Del. Super. Apr. 29, 2004); Myer v. Dyer, C.A. No. 86C-MY-96, slip op. at 17, Herlihy, J. (Del. Super. Jan. 11, 1994); Starkey v. Hunt-Madani Professional Associates, P.A., C.A. No. 84C-SE-50, slip op. at 1-2, Gebelen, J. (Del. Super. Mar. 31, 1988), reh’g denied, C.A. No. 84C-SE-50, Gebelein, J. (Del. Super. Apr. 4, 1988); Schmidt v. Hobbs, C.A. No. 85C-OC-135, slip op. at 2-3, Babiarz, J. (Del. Super. Mar. 17, 1988); State ex rel. Secretary of the Dept. of Transportation v. Thompson, C.A. No. 78C-AU-13, slip op. at 3, Taylor, J. (Del. Super. Jan. 14, 1980). Where the expert is deeply involved in trial preparation and strategy, the expert may also be protected from compulsory process by the opposing party on grounds relating to the attorney-client privilege. See State ex rd. State Highway Dept. v. 62.96247 Acres of Land, 193 A.2d 799, 808-12 (Del. Super. 1963).

41. Ch. Ct. R. 35; Super Ct. Civ. R. 35; Comm. Pls. Ct. Civ. R. 35; Fam. Ct. Civ. R. 35.

42. Pinkett v. Brittingham, 567 A.2d 858, 860 (Del. 1989). See also Home v. Kent General Hospital, Inc., C.A. No. 85C-AP-29, slip op. at 3, Bifferato, J. (Del. Super. Aug. 28, 1990); Sims v. Zayre Corp., C.A. No. 85C-AP-29, slip op. at 3, Bifferato, J. (Del. Super. May 8, 1990) (where defendant failed to subpoena its own medical expert, and expert did not object to plaintiff’s subpoena, court permitted plaintiff to call defendant’s medical expert).

43. State ex rel. Secretary of the Dept. of Transportation v Thompson, C.A. No. 78C-AU-13, slip op. at 3, Taylor, J. (Del.. Super. Jan. 14, 1980). See also State v. McLaughlin, 514 A.2d 1139, 1140 (Del. Super. 1986) (criminal defendant has no constitutional right to compel a non-material expert witness with no knowledge of the facts and who was not the only available expert).

43.1. Winchester v. Hetrich, 658 A.2d 1016, 1021 (Del. Super. 1995).

44. Ch. Ct. R. 26(4)(A)(i); Super. Ct. Civ. R. 26(4)(A)(i); Super. Ct. Cr. R. 16(a)(1)(E); Comm. Pls. Ct. Civ. R. 26(b)(4)(A)(i); Comm. Pls. Ct. Cr. R. 17(a)(1)(E); Fam. Ct. Civ. R. 26(g)(3)(A)(i).

44.1. Barrows v. Abramowicz, 931 A.2d 424, 429-432 (Del. 2007).

45. Home v. Kent General Hospital, Inc., C.A. No. 85C-AP-29, slip op. at 4, Bifferato, J. (Del. Super. Aug. 28, 1990); Starkey v. Hunt-Madani Professional Associates, P.A., C.A. No. 84C-SE-50, slip op. at 2, Gebelein, J. (Del. Super. Mar. 31, 1988), reh’g denied, C.A. No. 84C-SE-50, Gebelein, J. (Del. Super. Apr. 4, 1988); Schmidt v. Hobbs, CA. No. 85C-OC-135, slip op. at 3-5, Babiarz, J. (Del. Super. Mar. 17, 1988).

46. See Home v. Kent General Hospital, Inc., C.A. No. 85C-AP-29, slip op. at 2-3, 5, Bifferato, J. (Del. Super. Aug. 28, 1990); Paris v. Wilmington Medical Center, Inc., C.A. No. 80C-NO-14, slip op. at 2, Poppiti, 3. (Del. Super. Feb. 10, 1987).

47. Walls v. Cooper, No. 209, 1991, slip op. at 12-13, Christie, 3. (Del. Nov. 8, 1991) (ORDER), disposition reported at 604 A.2d 419 (Del. 1991) (TABLE), cert. denied, 503 U.S. 1006 & 504 U.S. 919 (1992).

48. D.R.E. 614(a); Walls v. Cooper, No. 209, 1991, slip op. at 13, Christie, J. (Del. Nov. 8, 1991) (ORDER), disposition reported at 604 A.2d 419 (Del. 1991) (TABLE), cert. denied, 503 U.S. 1006 & 504 U.S. 919 (1992).

49. Shipley v. State, 570 A.2d 1159; 1171 (Del. 1990); Office of Public Defender v. Thompson, 451 A.2d 835, 837 (Del. 1982). See also Bailey v. State, 438 A.2d 877 (Del. 1981).

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