9.6 EXPERT INFORMATION NOT ACQUIRED IN ANTICIPATION OF LITIGATION
Rule 4:1(b)(4) only applies to facts and opinions "acquired or developed in anticipation of litigation or for trial." Accordingly, many persons deemed to be experts, including parties, employees, and agents of a party and non-party witnesses such as treating physicians and service and repair personnel, will be privy to facts and will hold opinions relevant to the subject matter of the action that were not acquired in anticipation of litigation. Discovery of facts and opinions held by these experts will be governed not by the strictures of Rule 4:1(b)(4) but by Rule 4:1(b)(1), which permits discovery of any nonprivileged matter relevant to the subject matter of the action.50
Federal courts have recognized this distinction and held the following to be freely discoverable: treating physicians,51 a coroner performing an autopsy,52 a medical consultant to a railroad,53 an engineer and architect retained by an insurer pre-claim denial to evaluate water damage54 and an expert in prior litigation subsequently retained in pending litigation as to opinions held before being retained in pending litigation.55
Factors a court is likely to consider when an unretained expert resists discovery include (i) the degree to which the expert is being called to provide relevant factual testimony rather than opinion testimony, (ii) the extent to which the testimony relates to a previously formed or expressed opinion rather than a new one, (iii) the possibility that the witness is a unique expert, (iv) the extent to which the party seeking discovery is able to show that no comparable witness is available, (v) and the hardship, if any, to the potential witness.56
Many recent Virginia decisions regarding discovery of an expert's opinions and the facts on which those opinions are based pertain to a plaintiff's treating physician in a personal injury or medical malpractice action. These opinions address such issues as the patient-physician privilege, the fiduciary duty of a treating physician to his or her patient, payment of a treating physician's witness fee, and determining which portions of his or her testimony are opinion and which are fact. However, the courts' guidance may apply to non-physician experts in other contexts.
In Pettus v. Gottfried,57 the Virginia Supreme Court, interpreting section 8.01-399(B) of the Virginia Code,58 distinguished the factual portions of a treating physician's testimony from his or her opinion testimony. only a physician's current opinions must reach the reasonable degree of medical probability standard. Thus, a physician can testify regarding his or her examination and observation of the patient and impressions and conclusions reached during the course of treating the patient because that testimony is factual rather than expert opinion. But any testimony regarding hypotheticals or testimony beyond the witness's medical records may be expert testimony subject to the reasonable degree of medical probability standard.59 Accordingly, a defendant should be able to discover the conclusions, documented...
