Philadelphia Electric Co. v. Nuclear Energy Liability-Property Insurance

10 Pa. D. & C.3d 340, 1979 Pa. Dist. & Cnty. Dec. LEXIS 324
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJune 7, 1979
Docketno. 4180
StatusPublished

This text of 10 Pa. D. & C.3d 340 (Philadelphia Electric Co. v. Nuclear Energy Liability-Property Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Philadelphia Electric Co. v. Nuclear Energy Liability-Property Insurance, 10 Pa. D. & C.3d 340, 1979 Pa. Dist. & Cnty. Dec. LEXIS 324 (Pa. Super. Ct. 1979).

Opinion

TARIFF,

— Presently before the court is defendant Nuclear Energy Liability-Property Insurance Association a/k/a Nuclear Energy Property Insurance Association’s (NELPIA) motion to compel full and complete answers to its third set of interrogatories addressed to plaintiff Philadelphia Electric Company, for itself and on behalf of Public Service Electric & Gas Company, Atlantic City Electric Company and Delmarva Power & Light Company (PECO).

The interrogatories in question were filed on January 4,1979, and, pursuant to two extensions of time within which to reply, PECO filed partial answers thereto on March 13, 1979. Requested in the interrogatories are:

(1) The name, address, telephone number, occupation, specialization and qualifications (including training, experience and publications) of each person expected to be called as an expert witness at trial, along with the subject matter, facts, and opinions to which each is expected to testify (30-33);

(2) The factual information supplied to each such [342]*342expert expected to be called (including the objects and materials examined) and the grounds for the opinions, including any text materials relied upon (34-35);

(3) Information similar to that requested in the questions summarized in (1), supra, except as to each person who has been consulted or retained as an expert, in anticipation of litigation or preparation for trial, who is not expected to be called as a witness at trial (36-39);

(4) Whether each such expert not expected to be called rendered an opinion, the date thereof, its form, to whom it was given, and its present custodian (40-41); and

(5) The name, address, and telephone number of each person who is an eyewitness to the issues of liability or damages or who has knowledge concerning those issues or of the incident referred to in the complaint (42-46).

The determination of the propriety of these inquiries turns upon the Rules of Civil Procedure governing discovery, as recently amended (effective April 16, 1979).

Under the liberalized general discovery provisions of the new rules, a party may obtain discovery of any matter relevant to the pending action which is not privileged: Pa.R.C.P. 4003.1; see Fed.R. Civ.P. 26(b)(1); even if prepared in anticipation of litigation or trial: Pa.R.C.P. 4003.3; compare, Fed. R. Civ. P. 26(b)(3). The discovery of expert testimony is radically expanded by Pa.R.C.P. 4003.5, which closely parallels Fed.R.Civ.P. 26(b)(4). This expansion is intended to prevent unfair surprise, permit adversaries to effectively cross-examine and rebut the expert witnesses of [343]*343their opponents, and allow for a more orderly presentation of complex factual issues at trial. However, it is not meant to enable one party to prepare its own case through discovery of the experts of an opponent.

A. EXPERT WITNESSES EXPECTED TO BE CALLED AT TRIAL

Rule 4003.5 permits a party to require (through interrogatories) the identification (beyond the “identity” and “location” stated in Rule 4003.1) of each expert witness whom another party expects to call at trial, and the subject matter upon which the expert is expected to testify. Further, the substance of the facts and opinion to which each expert is expected to testify, and a summary of the grounds for each opinion, may be obtained.

NELPIA’s interrogatories directed to PECO which inquire into the identity (name, address, telephone number, occupation, specialization and qualifications) of each expert expected to be called as a witness at trial, and the subject matter each is expected to testify to, are appropriate. The questions regarding the facts and opinions expected to be testified to are also permissible, with the qualification that only the “substance” of same need be supplied. The requested summary of the grounds for the opinions (inter aha, the factual information supplied to and utilized by the expert, the objects and materials examined, and the tested materials relied upon) is also an appropriate area of inquiry.

Although all of the foregoing information is necessary for adequate trial preparation, it is obvious that the answering party must have determined (with reasonable certainty) who its expert [344]*344witnesses at trial will be before it can answer the questions posed. If not then known, it still must be stated in the answers to the interrogatories that experts have not been retained or otherwise engaged for trial. Upon such a statement, a duty arises under Pa.R.C.P. 4007.4(1) to “seasonably” supplement the prior answer when and if an expert is retained for trial testimony. The sanction for failure to disclose the identity of an expert witness (either upon initial inquiry or seasonably after the duty to disclose arises) is the barring of the undisclosed expert from testifying at the trial of the action. See Pa.R.C.P. 4003.5(b).

PECO’s answer to the interrogatory requesting disclosure of the identity of the experts to be called at trial is sufficient at present. Two potential experts are identified, and it is further stated that when additional experts are identified, the answer will be supplemented. This supplementation must be done within a reasonable time after the retention of additional experts.

However, the substantive information now offered in regard to the two experts presently disclosed is inadequate. Further details as to their qualifications, the facts and opinions they are expected to testify to, and the grounds for their opinions, must be supplied. Information that may be gleaned at depositions not yet held cannot be relied upon to avoid a present answer to the questions now posed and it is obviously insufficient to state that the grounds for the expert opinions axe “general experience and knowledge.” As previously stated, only the substance of the facts and opinions, and a summary of the grounds for the opinions, are necessary. Where an interrogatory can be adequately answered from the records of the answer[345]*345ing party, such records can be specified in lieu of a more formal answer. See Pa.R.C.P. 4006(b).

The sanction for answers to interrogatories that are incomplete (i.e., which fail to fully reveal the facts, opinions and grounds therefor in response to interrogatories asking for all facts, opinions and the grounds therefor) is the limitation of the trial testimony of the experts to the fair scope of the information set forth in the answers: Pa.R.C.P. 4003.5(c). See explanatory note to the 1978 amendments to the Rules Governing Depositions and Discovery; Rule 4003.5, A. 2d Penna. Ed. Advance Sheets pp. 46-47 (January 26, 1979) (Explanatory Note).

B. EXPERTS NOT EXPECTED TO BE CALLED AT TRIAL

Rule 4003.5 carefully distinguishes between an expert witness expected to be called at trial, and an expert not expected to be called as a witness:

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Bluebook (online)
10 Pa. D. & C.3d 340, 1979 Pa. Dist. & Cnty. Dec. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philadelphia-electric-co-v-nuclear-energy-liability-property-insurance-pactcomplphilad-1979.