Navigating the Rule 26 Expert Disclosure Rules

While expert testimony is key in many types of cases, in no area of the law is this more true than in product liability cases, which often turn on highly technical concepts such as product design “defect” and the availability of a reasonable alternative design. As a result, most product liability practitioners are at least generally familiar with Daubert v. Merrell-Dow Pharmaceuticals, Inc., and Kumho Tire Co. Limited v. Carmichael, the substantive law that, along with Rule 702 of the Federal Rules of Evidence, determines whether an expert's opinion gets to the jury. When we think of Daubert challenges, we think of the flashy science-driven arguments that get law clerks giddy about exercising their academic prowess by sifting through medical testimony and scientific journals. However, even a qualified expert with an opinion based on reliable methodology may never reach the jury if counsel fails to be mindful of the highly technical expert disclosure requirements that the federal rules require and courts enforce with little empathy. This article highlights some of the basic requirements and common mistakes that plague practitioners in this area.