Expert Witnesses in South Carolina
According to Rule 702 of the South Carolina Rules of Evidence, a witness may qualify as an expert by knowledge, skill, experience, training, or education if the testimony assists the trier of fact in understanding the evidence or determining a fact in issue.
Rules Governing Disclosure
Rule 26 of the South Carolina Rules of Civil Procedure allows a party to discover the identity of any expert the opposing side expects to call at trial, along with the facts known and opinions held by that expert. A party may depose a testifying expert, and the party seeking the deposition must pay the expert’s reasonable fees and expenses. Experts retained only for consultation and not expected to testify are generally shielded from discovery unless the requesting party shows exceptional circumstances making it impracticable to obtain the same information by other means. Rule 26 also imposes a continuing duty to supplement expert disclosures as additional information becomes available or opinions change.
In South Carolina, expert witness disclosure must be thorough enough to allow the opposing party to prepare effectively for trial. Parties are generally required to provide detailed information about the expert, including the expert’s background and qualifications—such as education, training, and relevant professional experience. The disclosure must also summarize the expert’s opinions and explain the basis for those conclusions, including any methodology applied. All facts, data, or materials the expert relied on in forming those opinions must be shared. Additionally, the party must disclose the expert’s compensation arrangements—such as hourly rates and other payment terms—and identify other cases in which the expert has previously testified, whether at trial or in deposition, typically covering the past four years.
Under Rule 37 of the SCRCP, the court may impose sanctions, which may include monetary penalties or even the dismissal of certain claims.
In professional-negligence actions, the expert has to be a licensed, credentialed professional—typically board-certified or otherwise experienced preferably in the same field as the defendant—who has the qualifications and practical knowledge to testify about the applicable standard of care and alleged deviation for the purposes of § 15-36-100.
Admissibility Standards
South Carolina is neither strictly a Daubert state nor a Frye state for expert witness admissibility. Instead, South Carolina uses its own standard under Rule 702 of the South Carolina Rules of Evidence, interpreted through state court decisions. Under this approach, the focus is on whether the expert testimony will assist the trier of fact and whether the expert is qualified and the testimony is reliable—factors that resemble elements of Daubert but are applied under South Carolina’s case law rather than the federal Daubert framework.
Attorney–Expert Communication Protection
South Carolina’s Rule 26 was amended (effective 2024) to add Rule 26(b)(4)(D), which provides trial-preparation protection for communications between a party’s attorney and an expert witness.
These communications are generally protected from discovery, including draft reports and discussions, except for communications about:
(i) compensation for the expert’s study or testimony;
(ii) facts or data counsel provided that the expert considered; and
(iii) assumptions counsel provided that the expert relied on in forming opinions.
Compensation
According to Rule 26 of the SCRCP, when a party seeks discovery from an expert expected to testify at trial, the party requesting that discovery must pay the expert a reasonable fee for the time spent responding, including preparation and travel.
Upon motion, the requesting party may have to pay the retaining party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions. The rule ensures that experts are compensated for the burden of participating in discovery and prevents one party from shifting those costs to the opposing side.
Limits on Number of Expert Witnesses
While South Carolina does not prohibit parties from designating multiple expert witnesses, the court can impose reasonable limits in its scheduling order or at pretrial to ensure fair and efficient proceedings.
Out-of-State Expert Qualification
South Carolina does not exclude out-of-state experts solely because they are from another jurisdiction, but there are practical and procedural requirements that such experts must meet before they can testify or be deposed in a South Carolina case.
For medical experts, there is a separate statutory licensing requirement under S.C. Code § 40-47-35: an out-of-state physician may be granted a temporary South Carolina license solely to testify as an expert in a particular proceeding. A separate license must be obtained for each proceeding in which the physician will provide expert testimony in South Carolina. This ensures compliance with state licensure rules when expert testimony involves the practice of medicine.
Rebuttal Experts
South Carolina permits the use of rebuttal experts, but their scope and timing are controlled by court scheduling orders rather than a stand-alone rule. A rebuttal expert may be used only to counter, explain, or respond to opinions offered by the opposing party’s expert.
They may not introduce new affirmative opinions that could have been disclosed in the party’s original expert designation.
State-Specific Statutes & Local Rules
SCRCP Rule 26: This rule outlines the general provisions governing discovery and expert disclosures in South Carolina.
SCRCP Rule 37: Sanctions for discovery violations
Rule 702 of the South Carolina Rules of Evidence: Establishes the admissibility criteria for expert testimony
