Navigating the Rule 26 Expert Disclosure Rules

When Do I Have to Disclose My Expert?

This rule is the first and most basic procedural question to answer with regard to experts. While most federal courts will issue a scheduling order that determines the time for filing expert reports, some courts will not, and in lieu of such order, the Federal Rules provide a default:

(C) Time to Disclose Expert Testimony.

'A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:

” (i) at least 90 days before the date set for trial or for the case to be ready for trial; or

” (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure.

Fed. R. Civ. P. 26(a)(2)(D).

What Do I Have to Disclose?

The answer to this question depends on the type of expert being disclosed. Experts come in three basic varieties: 1) a retained testifying expert or an employee who testifies on a regular basis as part of his/her employment (i.e., a “professional employee expert”); 2) a retained consulting expert; and 3) employees rendering expert opinions who are not “retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.”

1. Retained Testifying Experts/ Professional Employee Expert

The Federal Rules require that retained experts file a written report along with their disclosure, and provide specific guidelines for what should be contained in a written expert report. Complying with these requirements and properly supplementing the report are absolutely crucial. The Rules require the report to contain the following:

(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report ' prepared and signed by the witness ' and must contain:

(i)

'a complete statement of all opinionsthe witness will express and the basis and reasons for them;

(ii) the

'facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B).

2. Consulting Experts

Consulting experts are often utilized in product liability cases to perform analysis on a product and/or accident; educate an attorney on the subject matter; and assist in issue-spotting, among other things. These types of litigation consultant experts do not fall within the Rule 26 disclosure rules and are specifically protected from discovery obligations ' unlike testifying experts. See Fed. R. Civ. P. 26(b)(4)(D), which states, “Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.”

Prior to the amendment of the Federal Rules of Civil Procedure, the majority of courts followed a bright-line rule as to testifying expert discovery, mandating disclosure of all documents considered by an expert in coming to his opinions, including work product. See Reg'l Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 716-17 (6th Cir. 2006); In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001); Elm Grove Coal Co. v. Dir., O.W.C.P., 480 F.3d 278, 301-02 (4th Cir. 2007).

The pre-2010 mandatory disclosure rule resulted in counsel often choosing to hire both consulting and testifying experts to preserve privilege. However, the 2010 changes to the Federal Rules of Civil Procedure ' at least on its face ' substantially limit the discovery that can be sought from testifying experts, banning discovery of draft expert reports and only allowing discovery of attorney-expert communications that: 1) relate to compensation for the expert's study or testimony; 2) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or 3) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. Fed. R. Civ. P. 26(b)(4)(B)-(C).

However, courts which have interpreted the new amendments have resisted complete abrogation of the “bright-line rule” and interpreted the communications privilege narrowly. See Republic of Ecuador v. Bjorkman, 2012 WL 12755 (D. Colo. Jan. 4, 2012).

Thus, keeping communications with your testifying expert minimal and having a separate consulting expert can still be beneficial. Of course, counsel must be mindful that the disclosure rules will apply to a consulting expert as soon as s/he is transitioned to a testifying expert, and some courts have found that this obligation includes producing “facts and data” relied on by that expert when s/he was in that earlier consulting role. See Sara Lee Corp. v. Kraft Foods Inc., 273 F.R.D. 416, 419-20 (N.D. Ill. 2011), which discusses how courts approach the disclosure rules for experts who wear “two hats.”

3. Employees Rendering 'Expert' Opinions

Employee experts not “retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony” are not required to provide a written report but must disclose:

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and

(ii) a summary of the facts and opinions to which the witness is expected to testify.

Fed. R. Civ. P. 26(a)(2)(C); see also 2010 Adv. Comm. Notes FRCP 26.

The trap when it comes to employee experts is failure to recognize testimony that amounts to “expert” testimony. While an employee witness is allowed to testify about the facts of a case where he or she has personal knowledge, he or she cannot give an opinion on a subject with “scientific, technical, or other specialized knowledge.” Fed. R. Evid. 702. For example, a company employee such as a product engineer or a quality control manager involved in the design phase or the manufacturing phase of a product may have knowledge necessary to inform the jury properly about the product. If this person is not disclosed as an expert, any such opinions will be struck. See Kaplan v. Kaplan, 2012 WL 1660605 (M.D. Fla. May 11, 2012).

Employee experts are also subject to the same Daubert challenges as retained experts, and may be deposed as an expert. However, employees with expert knowledge are not protected under the attorney communications privilege, which applies to retained experts. See 2010 Adv. Comm. Notes FRCP 26.

Do I Have to Supplement My Opinions?

Often, an expert's opinion may change or need to be updated during the duration of litigation while discovery is still open. Federal Rule of Civil Procedure 26(e)(2) provides that: “[f]or an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.” This is one of the most common errors that can lead to exclusion of an expert opinion.

The Harsh Reality of Non-Compliance with the Expert Disclosure Rules

The sanctions for failure to disclose your expert's opinion properly can be undeniably harsh. A deficient written report or an untimely report can result in the exclusion of the expert's testimony in its entirety on a motion, at a hearing or at trial. See Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008). Federal Rule of Civil Procedure 37 provides that “if a party fails to provide information or identify a witness as required by Rule 26(a) ' , the party is not allowed to use that information or witness to supply evidence ' ” unless the error is harmless or a party shows substantial justification. Trial courts do not take this provision lightly, and trial courts have substantial discretion to impose the limits set out by the disclosure rules. See Amarel v. Connell, 102 F.3d 1494, 1514 (9th Cir. 1996).

For example, in Walter Intern. Productions, Inc. v. Salinias, 650 F.3d 1402 (11th Cir. 2011), the Eleventh Circuit upheld the trial court's decision to strike six of the plaintiff's proposed experts based on failure to comply with the court's scheduling order for disclosure of expert testimony, despite repeated extensions, and failure “to provide a report of the type envisioned by Rule 26(a)(2)(B).” Id., 1409-10.

Even where the expert's written report is substantially in compliance but omits opinions in the report or omits data/literature that an expert relied on, the court may strike those specific opinions that are not specifically disclosed in the report. See, e.g., Olson v. Montana Rail Link, Inc., 227 F.R.D. 550 (D. Mont. 2005) (holding that failure of defendant to provide data underlying expert report by the expert disclosure deadline warranted sanction of excluding expert from in any way relying upon data or conclusions specifically not included and spelled out in his timely disclosure). While courts allow experts to “elaborate” on opinions stated in their reports and certainly do expect a certain amount of deviation, new opinions that have not been properly disclosed either through the original report or supplementation are inadmissible. See Beller ex rel. Beller v. United States, 221 F.R.D. 696, 700-01 (D.N.M. 2003).

Justification for the rule, and a good rule of thumb to consider, is whether or not the report puts opposing counsel on notice of the opinion such that they would be prepared to question the expert about the data/ and or opinion at a deposition or at least would not be ambushed by the opinion at trial. Thibeault v. Square D Co., 960 F.2d 239, 244 (1st Cir. 1992) (“In the arena of expert discovery ' Rule 26 increases the quality of trials by better preparing attorneys for cross-examination, minimizing surprise, and supplying a helpful focus for the court's supervision of the judicial process.”). If opposing counsel does not reasonably have the opportunity to question the expert about the basis of his opinion, the trial court will likely find that the error is “harmful” as contemplated by Rule 37(c), and will strike the opinion as was the case in Salinias.

Conclusion

In order to avoid the all too common pitfalls associated with the improper disclosure of experts and their corresponding written reports, counsel in a product liability case should identify the disclosure deadline, format, and content required by the court as early as possible. Counsel should also take care to read and re-read the Federal Rules of Civil Procedure, local rules and scheduling orders at the outset of the case. The consequences for failing to do so are dire and costly. This is especially true in a product liability context, where the case often turns on the quality of the expert witnesses and scientific evidence. Being fully prepared to face this challenge may just be the deciding factor in a product liability matter.

'

'

Ricardo Woods and Taylor Barr are attorneys at Burr & Forman LLP (Mobile, AL). Mr. Woods, a partner who focuses his practice on product liability litigation, may be reached at 251-345-8257 or [email protected]. Ms. Barr, an associate, may be reached at 251-345-8235 or [email protected].

'

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.

Making a Proper Rule 26 Expert Disclosure

Federal and state courts alike have repeatedly shown that the guidelines for experts set out in Rule 26 are not flexible, and failure to comply with these requirements can have devastating consequences, including the exclusion of an expert and even the possibility of a suit for malpractice. See, e.g., Byrd v. Bowie , 992 So.2d 1202, 1203 (Miss. Ct. App. 2008), which upholds a $2 million award in a legal malpractice claim that resulted from an attorney's failure to timely disclose the expert, resulting in summary judgment in a medical malpractice action. Thus familiarity with these rules ' especially with the changes to the Federal Rules in 2010 that are now fully in effect ' is essential.

When Do I Have to Disclose My Expert?

This rule is the first and most basic procedural question to answer with regard to experts. While most federal courts will issue a scheduling order that determines the time for filing expert reports, some courts will not, and in lieu of such order, the Federal Rules provide a default:

(C) Time to Disclose Expert Testimony.

'A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:

” (i) at least 90 days before the date set for trial or for the case to be ready for trial; or

” (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure.

Fed. R. Civ. P. 26(a)(2)(D).

What Do I Have to Disclose?

The answer to this question depends on the type of expert being disclosed. Experts come in three basic varieties: 1) a retained testifying expert or an employee who testifies on a regular basis as part of his/her employment (i.e., a “professional employee expert”); 2) a retained consulting expert; and 3) employees rendering expert opinions who are not “retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.”

1. Retained Testifying Experts/ Professional Employee Expert

The Federal Rules require that retained experts file a written report along with their disclosure, and provide specific guidelines for what should be contained in a written expert report. Complying with these requirements and properly supplementing the report are absolutely crucial. The Rules require the report to contain the following:

(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report ' prepared and signed by the witness ' and must contain:

(i)

'a complete statement of all opinionsthe witness will express and the basis and reasons for them;

(ii) the

'facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B).

2. Consulting Experts

Consulting experts are often utilized in product liability cases to perform analysis on a product and/or accident; educate an attorney on the subject matter; and assist in issue-spotting, among other things. These types of litigation consultant experts do not fall within the Rule 26 disclosure rules and are specifically protected from discovery obligations ' unlike testifying experts. See Fed. R. Civ. P. 26(b)(4)(D), which states, “Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.”

Prior to the amendment of the Federal Rules of Civil Procedure, the majority of courts followed a bright-line rule as to testifying expert discovery, mandating disclosure of all documents considered by an expert in coming to his opinions, including work product. S ee Reg'l Airport Auth. of Louisville v. LFG, LLC , 460 F.3d 697, 716-17 (6th Cir. 2006); In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001); Elm Grove Coal Co. v. Dir., O.W.C.P., 480 F.3d 278, 301-02 (4th Cir. 2007).

The pre-2010 mandatory disclosure rule resulted in counsel often choosing to hire both consulting and testifying experts to preserve privilege. However, the 2010 changes to the Federal Rules of Civil Procedure ' at least on its face ' substantially limit the discovery that can be sought from testifying experts, banning discovery of draft expert reports and only allowing discovery of attorney-expert communications that: 1) relate to compensation for the expert's study or testimony; 2) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or 3) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. Fed. R. Civ. P. 26(b)(4)(B)-(C).

However, courts which have interpreted the new amendments have resisted complete abrogation of the “bright-line rule” and interpreted the communications privilege narrowly. See Republic of Ecuador v. Bjorkman, 2012 WL 12755 (D. Colo. Jan. 4, 2012).

Thus, keeping communications with your testifying expert minimal and having a separate consulting expert can still be beneficial. Of course, counsel must be mindful that the disclosure rules will apply to a consulting expert as soon as s/he is transitioned to a testifying expert, and some courts have found that this obligation includes producing “facts and data” relied on by that expert when s/he was in that earlier consulting role. See Sara Lee Corp. v. Kraft Foods Inc. , 273 F.R.D. 416, 419-20 (N.D. Ill. 2011), which discusses how courts approach the disclosure rules for experts who wear “two hats.”

3. Employees Rendering 'Expert' Opinions

Employee experts not “retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony” are not required to provide a written report but must disclose:

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and

(ii) a summary of the facts and opinions to which the witness is expected to testify.

Fed. R. Civ. P. 26(a)(2)(C); see also 2010 Adv. Comm. Notes FRCP 26.

The trap when it comes to employee experts is failure to recognize testimony that amounts to “expert” testimony. While an employee witness is allowed to testify about the facts of a case where he or she has personal knowledge, he or she cannot give an opinion on a subject with “scientific, technical, or other specialized knowledge.” Fed. R. Evid. 702. For example, a company employee such as a product engineer or a quality control manager involved in the design phase or the manufacturing phase of a product may have knowledge necessary to inform the jury properly about the product. If this person is not disclosed as an expert, any such opinions will be struck. See Kaplan v. Kaplan, 2012 WL 1660605 (M.D. Fla. May 11, 2012).

Employee experts are also subject to the same Daubert challenges as retained experts, and may be deposed as an expert. However, employees with expert knowledge are not protected under the attorney communications privilege, which applies to retained experts. See 2010 Adv. Comm. Notes FRCP 26.

Do I Have to Supplement My Opinions?

Often, an expert's opinion may change or need to be updated during the duration of litigation while discovery is still open. Federal Rule of Civil Procedure 26(e)(2) provides that: “[f]or an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.” This is one of the most common errors that can lead to exclusion of an expert opinion.

The Harsh Reality of Non-Compliance with the Expert Disclosure Rules

The sanctions for failure to disclose your expert's opinion properly can be undeniably harsh. A deficient written report or an untimely report can result in the exclusion of the expert's testimony in its entirety on a motion, at a hearing or at trial. See Ciomber v. Coop. Plus, Inc. , 527 F.3d 635, 641 (7th Cir. 2008). Federal Rule of Civil Procedure 37 provides that “if a party fails to provide information or identify a witness as required by Rule 26(a) ' , the party is not allowed to use that information or witness to supply evidence ' ” unless the error is harmless or a party shows substantial justification. Trial courts do not take this provision lightly, and trial courts have substantial discretion to impose the limits set out by the disclosure rules. See Amarel v. Connell , 102 F.3d 1494, 1514 (9th Cir. 1996).

For example, in Walter Intern. Productions, Inc. v. Salinias , 650 F.3d 1402 (11th Cir. 2011), the Eleventh Circuit upheld the trial court's decision to strike six of the plaintiff's proposed experts based on failure to comply with the court's scheduling order for disclosure of expert testimony, despite repeated extensions, and failure “to provide a report of the type envisioned by Rule 26(a)(2)(B).” Id ., 1409-10.

Even where the expert's written report is substantially in compliance but omits opinions in the report or omits data/literature that an expert relied on, the court may strike those specific opinions that are not specifically disclosed in the report. See, e.g., Olson v. Montana Rail Link, Inc. , 227 F.R.D. 550 (D. Mont. 2005) (holding that failure of defendant to provide data underlying expert report by the expert disclosure deadline warranted sanction of excluding expert from in any way relying upon data or conclusions specifically not included and spelled out in his timely disclosure). While courts allow experts to “elaborate” on opinions stated in their reports and certainly do expect a certain amount of deviation, new opinions that have not been properly disclosed either through the original report or supplementation are inadmissible. See Beller ex rel. Beller v. United States , 221 F.R.D. 696, 700-01 (D.N.M. 2003).

Justification for the rule, and a good rule of thumb to consider, is whether or not the report puts opposing counsel on notice of the opinion such that they would be prepared to question the expert about the data/ and or opinion at a deposition or at least would not be ambushed by the opinion at trial. Thibeault v. Square D Co. , 960 F.2d 239, 244 (1st Cir. 1992) (“In the arena of expert discovery ' Rule 26 increases the quality of trials by better preparing attorneys for cross-examination, minimizing surprise, and supplying a helpful focus for the court's supervision of the judicial process.”). If opposing counsel does not reasonably have the opportunity to question the expert about the basis of his opinion, the trial court will likely find that the error is “harmful” as contemplated by Rule 37(c), and will strike the opinion as was the case in Salinias.

Conclusion

In order to avoid the all too common pitfalls associated with the improper disclosure of experts and their corresponding written reports, counsel in a product liability case should identify the disclosure deadline, format, and content required by the court as early as possible. Counsel should also take care to read and re-read the Federal Rules of Civil Procedure, local rules and scheduling orders at the outset of the case. The consequences for failing to do so are dire and costly. This is especially true in a product liability context, where the case often turns on the quality of the expert witnesses and scientific evidence. Being fully prepared to face this challenge may just be the deciding factor in a product liability matter.

'

'

Ricardo Woods and Taylor Barr are attorneys at Burr & Forman LLP (Mobile, AL). Mr. Woods, a partner who focuses his practice on product liability litigation, may be reached at 251-345-8257 or [email protected]. Ms. Barr, an associate, may be reached at 251-345-8235 or [email protected].

'