Vermont Expert Witness Rules: What Litigators Need to Know

Expert testimony is a key component of Vermont civil litigation, particularly in cases involving professional negligence, medical malpractice, environmental harm, and complex financial disputes. Vermont adheres to a discovery and admissibility framework based on the Vermont Rules of Civil Procedure and the Vermont Rules of Evidence, with procedural similarities to the federal system. While the state has not formally adopted the Daubert standard, its courts apply a comparable reliability-focused approach. Practitioners must navigate both disclosure obligations and admissibility requirements to ensure their expert testimony is admitted and persuasive.

Designation Requirements

Vermont does not require a formal motion or filing to designate expert witnesses. Instead, disclosure is handled through discovery procedures under Vt. R. Civ. P. 26(b)(4) and, in some cases, via pretrial scheduling orders issued under Rule 16.

When disclosing an expert expected to testify, the party must provide:

• The expert’s identity and qualifications
• The subject matter of expected testimony
• The substance of the expert’s opinions
• The basis and reasoning for those opinions

This information is typically furnished through interrogatory responses or required disclosures. Vermont courts expect good faith in meeting these obligations, and failure to properly or timely disclose expert testimony may result in exclusion under Rule 37(c).

Expert Disclosure Process

Vermont’s expert disclosure process is governed by Rule 26(b)(4)(A)(i), which allows discovery of facts known and opinions held by an expert expected to testify at trial. Parties may be required to provide:

• A summary of opinions and reasoning
• The data, reports, or materials the expert relied upon
• The expert’s curriculum vitae
• A record of prior testimony
• The fee schedule or rate for expert services

Although written reports are not automatically required, they may be ordered by the court or requested by opposing counsel. In practice, attorneys often obtain or exchange reports to clarify the scope of expert opinion and avoid later challenges to sufficiency of disclosure.

In medical malpractice and other professional liability cases, expert testimony is essential to establish the standard of care and causation. Disclosures in these matters are particularly scrutinized for thoroughness.

Required Declarations

Expert declarations are not required at the disclosure phase but are often critical at the summary judgment stage. Under Vt. R. Civ. P. 56(e), affidavits or declarations submitted in support of or opposition to summary judgment must:

• Be made on personal knowledge
• Present facts that would be admissible in evidence
• Demonstrate that the witness is qualified to offer expert opinions

In professional negligence cases, including medical malpractice, courts may grant summary judgment if the plaintiff fails to submit a qualified expert affidavit establishing that the defendant breached the applicable standard of care and caused the injury. The burden of presenting such affidavits rests with the non-moving party when expert testimony is necessary to establish a triable issue.

Fees and Compensation

Vermont does not impose statutory limits on expert witness compensation. Experts are paid according to private agreements with retaining counsel. However, when an expert is deposed by an opposing party, Rule 26(b)(4)(C) requires that the deposing party pay a reasonable fee for the expert’s time spent in deposition.

If a dispute arises over the reasonableness of an expert’s fee, the court may intervene to determine fair compensation, taking into account:

• The expert’s field of expertise
• The prevailing market rate
• Time spent in preparation and testimony

Discovery Scope and Limitations

Discovery of expert witnesses in Vermont is governed by Vt. R. Civ. P. 26(b)(4). A party may obtain:

• The identity and qualifications of the expert
• The substance and basis of their opinions
• Documents and materials the expert reviewed or relied upon
• The expert’s fee structure and prior testimony

Depositions of testifying experts are permitted, but must generally follow written disclosures.

Discovery of consulting experts — those retained in anticipation of litigation but not expected to testify — is prohibited absent exceptional circumstances, such as where the opposing party cannot obtain equivalent information by other means.

Draft reports and communications between counsel and expert may be protected under the work-product doctrine, though facts and data considered in forming opinions are generally discoverable.

Admissibility Standards

Vermont courts follow a reliability-focused standard similar to Daubert, though the Vermont Supreme Court has not explicitly adopted Daubert. The relevant authority is Rule 702 of the Vermont Rules of Evidence, which governs the admissibility of expert testimony.

Under Rule 702, expert testimony is admissible if:

The witness is qualified by knowledge, skill, experience, training, or education

1. The testimony will assist the trier of fact
2. The opinion is based on sufficient facts or data
3. The opinion is the product of reliable principles and methods
4. The expert has applied those methods reliably to the case

Vermont courts perform a gatekeeping function, assessing the reliability and relevance of expert opinions. In State v. Brooks, 643 A.2d 226 (Vt. 1993), the court acknowledged the influence of Daubert and stressed that novel scientific evidence must meet standards of scientific validity, including peer review, error rates, and general acceptance.

Daubert-style pretrial hearings are not automatic but may be requested where expert admissibility is contested.

Key Deadlines & Strategy Notes

Expert disclosure deadlines in Vermont are typically governed by the pretrial scheduling order issued under Rule 16. While no uniform statewide deadlines exist, common timelines include:

• Plaintiff’s expert disclosures: 90–120 days before trial
• Defendant’s expert disclosures: 30–60 days after plaintiff’s
• Rebuttal expert disclosures: 30 days prior to discovery cutoff
• Expert depositions: Must be completed before close of discovery
• Motions to exclude: Filed before or during the pretrial conference

Early identification and preparation of experts is crucial, especially in cases involving scientific causation, medical standards, or economic damages. Practitioners should ensure that experts are not only well-credentialed, but also able to articulate and defend their methods under scrutiny.

State-Specific Statutes & Local Rules

• Vt. R. Civ. P. 26(b)(4): Discovery of expert witnesses
• Vt. R. Civ. P. 56(e): Summary judgment affidavit standards
• Vt. R. Evid. 702: Admissibility of expert opinion testimony
• State v. Brooks, 643 A.2d 226 (Vt. 1993): Vermont’s primary authority on scientific expert admissibility
• Vt. R. Civ. P. 37(c): Sanctions for failure to disclose experts

Some Vermont courts — particularly in Chittenden, Washington, and Windsor counties — may issue standing orders that include additional expert disclosure deadlines or formatting requirements. Counsel should review local protocols and consult with the assigned judge regarding specific expectations.