The purpose of a deposition is often straightforward. Ordinarily, a deponent is either a fact witness or an expert witness.  If the former, the witness cannot be required to express opinions other than non-expert opinions allowed pursuant to Mass. Guide to Evidence §701. See Dean Foods Co. v. Pappathanasi, 17 Mass. L. Rep. 741 (Mass.Super.Ct. 2004). However, what happens when a fact witness, who happens to be an expert in a particular topic, is asked opinion questions at a deposition?

Consider the following scenario:  A dental hygienist is sued for negligence and sexual assault.  Your client, a dental hygienist and former co-worker of the defendant, is deposed as a fact witness.  Your client testifies she had never worked directly with the defendant and had never observed the defendant perform work.  In other words, the witness has no personal knowledge as to how the defendant practiced nor did she witness the alleged incident.  However, Plaintiff’s Counsel proceeds to ask a series of questions seeking expert opinions based on her job title as a dental hygienist. What do you do?

First, question the nature of the testimony that is being elicited. “[I]f it is observations of a physical condition or event, the witness is a fact witness; if it is testimony about diagnosis, treatment, or causation, it is expert opinion.” Morgan v. U.S. Xpress Inc., 2006 U.S. Dist. Lexis 7225 (2006).  If you determine the opposing party is seeking an expert opinion that is not based on personal knowledge, take the following steps:

1. Object.
2. Instruct the witness to answer only based on what she personally observed (which may result in an inability to answer).
3. If this line of questioning continues, suspend the deposition and seek a protective order.

Now it is true that there are exceptions to this rule, in that a deponent qualifies as both a fact and expert witness. For example, a treating physician may be both a fact witness and an expert witness. See Long v. Roy, 1999 Mass.Super Lexis 192, at *6-7 (Mass.Super.Ct., 1999).  However, keep in mind that the treating physician bases their testimony on personal knowledge.  “A party may not by summons compel the involuntary testimony of an expert witness solely for the expertise he may bring […] in the absence of personal knowledge on his part.” Bagley v. Illyrian Gardens, Inc. 401 Mass. 822, 826-27 (1988).  In the above dental hygienist scenario, that is exactly what Plaintiff’s counsel is attempting, which must not be allowed.

You may find at times that opposing counsel will attempt to hide the ball, trying to disguise their questions by including “in your experience,” or “why is it important?” but do not be fooled.  These are still expert questions as they are seeking opinions which are not based on personal knowledge. Take a breath, think back to the rule, and ask yourself what exactly opposing counsel is attempting to elicit and if your fact witness has the personal knowledge to response.  Then take decisive action as your client, who is being deposed as a fact witness, should not be used as an involuntary expert.

Preparation and your ability to think three steps ahead, anticipating the potential expert witness opinion questions, are key to protecting your client’s interests. For questions or continued discussion regarding this topic please contact James Strong at CMBG3 (js*****@***g3.com).