Thus, Oregon’s so-called “expert privilege” derives from the absence of ORCP 36 B(4), although it is still not a privilege as we use the term elsewhere in evidentiary and substantive rules. The misnomer may seem harmless at first glance, but the concept of a non-existent privilege invites the concept of waiving such a privilege. On the contrary, because the deletion of 36 B(4) is taken as an intentional prohibition, I would posit that such a prohibition cannot be inadvertently waived the way other privileges are waived. At a minimum, Oregon has no rule or case suggesting the protection could be waived. Despite the prohibition against expert discovery, practitioners should be aware that a person who is already a fact witness in a matter cannot be protected merely by designating the witness as a possible expert. In Gwin v. Lynn, 344 Or 65, 72 (2008), the Supreme Court held that experts who have “been personally or directly involved in events relevant to a case may … be deposed as to facts of which the witness has personal knowledge” independent from their role as experts. Id. at 72. The court explained allowable questions would focus on the expert’s “actions as a factual participant in the effort to mitigate damages” as distinct from questions that “call for answers about her expert opinions.” Id. at 73. Similarly, a party witness with personal knowledge cannot refuse to testify about opinions on the basis they would also give expert opinion testimony at trial. “(A)n expert who acquires or develops facts or opinions as a participant in the events at issue may be questioned about those events as an ordinary witness.” Ransom v. Radiology Specialists of Nw., 363 Or 552, 566-67 (2018). Finally, practitioners should be careful about the use of ORCP 47 E affidavits to avoid disclosure of expert identity and opinions. An attorney can avoid such disclosure by presenting a broad singular statement that the attorney has retained an expert who will testify to admissible facts and opinions creating a genuine issue of material fact and need not identify specific topics of testimony. Two Two v. Fujitec Am., Inc., 355 Or 319, 329 (2014). However, the affidavit must be “in good faith,” which can be challenged after the actual expert testimony is revealed at trial. Practitioners should be careful to create internal documentation of the expert interview being used as the basis for the affidavit, and list all possible topics that might be required to defeat summary judgment. Trial Testimony in Oregon: Everything Goes? The prohibition on expert discovery — with no express rule describing the prohibition — leaves judges and lawyers with little or no guidance at the time of trial. Under the federal rules, the expert discovery process provides clear guidance for what is discoverable, which has the effect of predetermining Oregon’s “Expert Privilege” Leaves Experts Unprotected at Trial continued from p. 29 “(A)n expert who acquires or develops facts or opinions as a participant in the events at issue may be questioned about those events as an ordinary witness.” 30 Trial Lawyer | Winter 2025
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