Expert Witness Disclosures:
How to Comply and Avoid Exclusion
Bench & Bar of Minnesota
Vol. 65, No. 4 | April 2008
Who must be considered an expert? Must the expert submit a report?
What information is discoverable from the expert? Knowing appropriate
strategies for handling expert witness testimony in federal court
can not only provide protection against exclusion, but should reduce
disputes and control litigation costs.
By Courtland C. Merrill
Before expert testimony is evaluated under the standards
of Daubert or
heard by a jury, the party offering the expert must first comply with
specific disclosure requirements during discovery. Failure to sufficiently
comply with expert disclosure requirements under the Federal Rules of
Civil Procedure can result in exclusion of the expert’s opinions, and
even dismissal when expert testimony is necessary to support a claim.
[1] While expert disclosures have been a part of civil
litigation for years, issues concerning who must be identified as an
expert, which experts must submit reports, and what information is discoverable
from experts, continue to arise over the course of litigation and create
confusion. Effective strategies should be taken well before trial to
prevent inadequate disclosure and avoid exclusion.
Who Is an Expert?
A party must disclose, without awaiting a discovery request, "the
identity of any witness it may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705." [2]
The line between expert testimony and lay opinion testimony is not easy
to draw. Pretrial scheduling orders typically require identification
of testifying experts months in advance of trial. Therefore, careful
practitioners should consider—before the required date to identify experts
in the pretrial order—whether the opinions of any fact witnesses constitute
expert testimony.
To determine whether proposed testimony is expert testimony, one turns
to Rule 702 of the Federal Rules of Evidence, which states that a witness
who is "qualified as an expert by knowledge, skill, experience,
training, or education" may testify to "scientific, technical
or other specialized knowledge" in the form of opinion or otherwise
where such knowledge "will assist the trier of fact to understand
the evidence or to determine a fact in issue." [3]
The inquiry does not stop with Rule 702. Equally important is Federal
Rule of Evidence 701 which limits the opinions of lay witnesses. Rule
701 provides:
"If the witness is not testifying as an expert, the witness’ testimony
in the form of opinions or inferences is limited to those opinions …
based on the perception of the witness …[and …] not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702." [4]
Rule 701 is intended to prohibit parties from evading the expert disclosure
requirements by offering what amounts to expert testimony from lay witnesses,
such as the parties or their employees. [5] Under Rule
701, lay testimony may not "provide specialized explanations or
interpretations that an untrained lay person could not make if perceiving
the same acts or events." [6] Rule 701 "does
not distinguish between expert and lay witnesses, but rather between
expert and lay testimony." [7] Thus,
"any part of a witness’ testimony that is based upon scientific,
technical or other specialized knowledge within the scope of Rule 702
is governed by the standards of Rule 702 and the corresponding disclosure
requirements of the Civil … Rules." [8]
Courts can and will exclude lay opinions that fail to comply with Rule
701. In Blandin Paper Co. v. J&J Industrial Sales, Inc., Judge Montgomery
prohibited fact witnesses not identified as experts from opining whether
a cleaning solvent containing hydrochloric acid damaged machinery. [9]
Similarly, in Medtronic, Inc. v. Boston Scientific Corp., Judge Kyle
concluded that testimony by employees of a party, concerning whether
certain physical properties were present in "shape memory alloys"
used in coronary stents, was in fact expert testimony. [10]
Judge Kyle determined that the employees’ testimony fell within the scope
of Rule 702 because it relied on inferences gained from specialized training
and that could not be perceived by the five senses.
Lay testimony does not, however, become expert testimony simply as a
result of the particularized knowledge that the witness has by virtue
of holding a position in the business. [11] Most courts
have permitted the owner or officer of a business to testify to the value
or projected profits of the business without the necessity of qualifying
the witness as an accountant, appraiser, or similar expert. [12]
A fact witness may testify to personal observations which relate to the
subject matter of litigation, or knowledge gained from industry experience
or review of records prepared in the ordinary course of business; a fact
witness may neither respond to hypothetical facts nor review documents
that are extraneous to the witness’ personal knowledge merely to form
opinion testimony. [13]
Given the fuzzy boundary between lay and expert testimony, one strategy
to prevent exclusion is to identify any fact witness as an expert if
there is any risk the witness’ testimony might be deemed expert testimony.
Courts that have excluded lay opinion testimony have indicated that the
testimony would have been permissible had the witness been timely identified
as an expert. [14] Indeed, the best expert may very
well be your client or one of its employees. Courts routinely permit
expert testimony by a party, employee, or other with interest in the
outcome of the litigation where the person has been identified as an
expert and has complied with disclosure requirements. Witnesses with
a pecuniary interest in the outcome of the case may serve as experts.
[15] A witness’ pecuniary interest goes to the probative
weight of testimony, not its admissibility. Moreover, you can avoid the
high cost of an outside expert by using your own client or an employee
as an expert. You may be better off with your client as an expert—one
who believes in the case and who will be very credible, if well prepared.
[16]
Reporting Requirements
Federal Rule of Civil Procedure 26(a)(2)(B) requires an expert "retained
or specially employed to provide expert testimony … or one whose duties
as the party’s employee regularly involve giving expert testimony"
to submit a written report which "must contain … a complete statement
of all opinions the witness will express and the basis and reasons for
them," among other things. [17] Rule 26(a)(2)(B)
contemplates two types of experts. One type of expert is the person whose
opinions may be presented at trial but who is not required to submit
a report. This first type includes experts whose opinions are based on
firsthand knowledge and who do not regularly provide testimony. [18]
For example, a treating physician who has rendered an opinion based on
firsthand knowledge of a patient is generally not required to submit
a report because he is not considered "retained or specially employed" to
provide testimony. [19] The second type of expert is
one whose opinions may be presented at trial, and who is required to
submit a report because he was retained or specially employed for the
purpose of providing expert testimony. This second type of expert may
provide testimony based on secondhand information to which she has no
personal knowledge.
There is a split in authorities concerning whether employee experts must
submit written reports. Some courts have found that employee experts
are exempt from the written report requirement when they are not specially
employed to provide expert testimony and do not regularly testify as
experts. [20] These courts rely on the logic that if
the drafters of Rule 26(a)(2) (B) had intended to impose an obligation
on all employee experts, they could have and would have done so. Other
courts have declined to recognize an exemption to the report requirement
for employee experts. [21] This view finds that an
exemption from the written report requirement for employee experts would
create a distinction at odds with the purpose of Rule 26(a)(2) (B), which
is to promote full disclosure of expert information.
Minnesota federal courts have been less than uniform as to whether employee
experts must submit reports. In 3M v. Signtech USA, Ltd., Magistrate
Lebedoff ruled that employees testifying as "fact or hybrid fact/
expert witnesses" were "retained or specially employed" for
purposes of Rule 26(a)(2)(B) and were required to submit reports. [22]
However, in Duluth Lighthouse for the Blind v. C.G. Bretting Mfg. Co.,
Magistrate Erickson was "not persuaded that the [c]ourt, in Signtech,
reached the correct result." [23] Magistrate Erickson
concluded that a plain reading of Rule 26(a)(2)(B) excludes employee
experts not specially retained to testify and who do not routinely perform
that function. In a subsequent unpublished case, Judge Kyle concluded
that "the distinction drawn by the magistrate judge in [Signtech]
between ‘fact or hybrid fact/expert witnesses’ and ‘expert witnesses’
appears to run counter to the evidentiary rule on expert testimony." [24]
Judge Kyle nonetheless determined that when a corporation identifies
an employee as an expert who does not normally provide expert testimony,
that the employee has been "specially employed" and a report
is required.
Given this lack of clarity, a practitioner relying on employee expert
testimony may well consider voluntarily complying with the written report
requirement. Agreeing to provide a report from an employee expert could
provide an additional assurance against exclusion and avoid a costly
dispute. In any event, courts may order submission of a report as a means
of fulfilling the court’s own gatekeeper duties under Daubert,
even when an expert is not automatically required to do so. [25]
How Much Detail?
In addition to opinions and bases, an expert report must contain the
expert’s qualifications, all of the data or other information considered
in forming the opinions, all summary or supporting exhibits, all publications
authored in the preceding ten years, compensation the expert was paid,
and a listing of all cases in which the expert gave prior deposition
or trial testimony within the preceding four years. [26]
The advisory committee notes state that the report must be "detailed
and complete." [27] These notes also explain that
the purpose of the report is to avoid the disclosure of "sketchy
and vague" expert information. [28]
Case law instructs that a "complete and detailed" report contains
the substance of the direct examination sufficient to qualify the witness
as an expert and establish the admissibility of the expert’s opinion
without the need for additional testimony or information. [29]
Reports have been excluded where the opinions were unsupported except
by general reference to records or omitted qualifications, compensation,
and previous testimony. [30]
Compiling an expert’s qualifications, publications and prior testimony
are things that should be done when the expert is engaged. If a potential
expert has difficulty providing this information, alarm bells should
sound as to whether the expert is someone that you want to rely on at
trial.
Writing the Report
If required, the report must be "prepared and signed by the witness." [31]
The advisory committee notes say that this requirement "does not
preclude counsel from providing assistance to experts in preparing the
report." [32] Counsel may assist in the preparation
of an expert’s report, so long as the report is written in a manner that
reflects the expert’s opinions and is signed by the expert.
Several courts have addressed the permissible amount of attorney involvement
in drafting an expert report. These courts conclude that as long as the
substance of the opinions is from the expert, the attorney’s involvement
in the written expression of those opinions does not make them inadmissible,
but caution that a report drafted entirely by counsel without prior substantive
input from an expert would read the word "prepared" completely
out of the rule. [33] Most attempts to exclude expert
testimony on the grounds that the report was "ghost-written"
by counsel prove unsuccessful. [34] Courts have rejected
a formalistic approach which would "require that the expert be the
person who actually puts pen to paper (or fingers to keyboard)." [35]
In a perfect world, all experts will prepare their own reports that comply
with each element of Rule 26(a)(2)(B) and Daubert, with
little assistance from counsel. This isn’t reality. Many experts will
need significant assistance from counsel to prepare their report. The
advisory committee notes identify an automobile mechanic as an example
of an expert who might potentially need assistance in preparing a report.
[36] Disputes over who authored an expert report usually
uncover little evidence of value, detract from the merits, and unnecessarily
increase costs.
Submitting & Supplementing
Absent a stipulation or specific date ordered by the court (as trial
courts commonly do), the report required by Rule 26(a)(2)(B) must be
submitted 90 days before trial or, if intended solely to rebut another
party’s proposed expert testimony, within 30 days after the other party’s
disclosure. [37] A rebuttal report is limited to explaining
or disproving evidence of the adverse party; it is not an opportunity
to correct oversights in the party’s case-inchief. [38]
A rebuttal report should not be excluded on the grounds that the expert
could have included the information in the original report so long as
the new information is limited in scope to matters raised by the opposing
expert’s disclosure. [39]
Parties must supplement the disclosures made in the report "when
required under Rule 26(e)." [40] Rule 26(e) has
two requirements applicable to experts. First, a party must timely supplement
or correct if the party "learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the additional
or corrective information has not otherwise been made known to the other
parties during the discovery process or in writing." [41]
Second, Rule 26(e)(2) requires the expert to supplement the information
in his report before the date the party’s pretrial disclosures are due
under Rule 26(a)(3). [42]
Expert Discovery
Federal Rule of Civil Procedure 26(b)(4) governs expert discovery. The
scope of discovery depends on whether the expert will testify at trial.
The work product of consulting experts is generally undiscoverable except
upon showing of exceptional circumstances. [43] Consequently,
all experts should be retained, at the outset of the engagement, as consulting
experts. Unless and until you are required to designate testifying experts
pursuant to Rule 26 (a)(2)(A) or (B) (or the pretrial order), you don’t
know with certainty whether you will need a testifying expert or, if
you do, whether the experts initially retained will ultimately be the
right ones for trial, in light of the evolution of the case through discovery
and motion practice. [44]
Testifying experts may be deposed regardless of whether or not they submit
a report. [45] If an expert must submit a report, the
deposition shall not be conducted until after the report is submitted.
[46]
Communications with testifying experts are generally not privileged.
Release of materials to a testifying expert waives a work product claim.
In In re Pioneer Hi-Bred Intern., Inc., the Federal Circuit concluded
that under 8th Circuit law, documents and information disclosed to a
testifying expert in connection with the expert’s testimony are discoverable
by the opposing party, whether or not the expert relies on the documents
and information in preparing her report. [47] In the
advisory committee notes, the drafters observe: "litigants should
no longer be able to argue that materials furnished to their experts
to be used in forming their opinions—whether or not ultimately relied
upon by the expert—are privileged or otherwise protected from disclosure
when such persons are testifying or being deposed."
While Rule 26(a)(2)(B) requires the disclosure of all materials considered
by a party’s employee designated as a testifying expert regardless of
attorneyclient or work-product privilege, the scope of such waiver does
not extend to information and/or documents that an employee-expert may
have considered in performing his general job duties but did not consider
in connection with formulating the opinions expressed within the report.
[48] Therefore, employees may serve as experts without
waiving privilege concerning information unrelated to the opinions they
intend to offer at trial.
Draft Reports
Draft reports are "information considered by the witness in forming
the opinions," and, therefore, material that must be disclosed under
Rule 26(a)(2) (B). Any drafts that are retained—whether by the expert
or by counsel, and whether on paper or in electronic form—are potentially
discoverable. Some courts have held that counsel have legal or ethical
obligations not to destroy any drafts that the expert may transmit to
them. [49]
Even if such drafts are discoverable, the discovery of drafts of expert
reports rarely provides substantial benefits. One needs only to read
the Trigon Ins. Co. v. United States case from the Eastern District of
Virginia and wonder as to the amount of money spent on the extraneous
dispute concerning draft reports. Thankfully, at least in the District
of Minnesota, there appears to be a trend away from discovery of draft
reports. The 2005 Patent Advisory Committee for the District of Minnesota,
which made recommendations with respect to local rules for patent cases,
made a specific recommendation to end wasteful motion practice regarding
the discovery of draft reports. Those recommendations resulted in the
District of Minnesota adopting local rules applicable to patents cases
which encourage parties to agree in advance as to the discoverability
of drafts of expert reports and provide that in the absence of agreement,
drafts are not discoverable. [50] While these local
rules apply only to patent cases, they provide a template that could
be utilized in other complex cases as a way to avoid disputes over draft
reports.
Conclusion
Most pitfalls concerning expert witness disclosures can be avoided by
strategies such as identifying witnesses as experts when their testimony
potentially falls within the scope of Rule 702, voluntarily submitting
reports from employee-experts, compiling information required in an expert
report at the beginning of the engagement, engaging experts as consultants
until required to designate them as a testifying expert, and seeking
agreement from opposing counsel at the beginning of the case regarding
the scope of discovery. These and other strategies should not only provide
protection against exclusion, but should reduce disputes and control
litigation costs.
Notes
-
Under Fed. R. Civ. P. 37(c)(1), if a party
fails to disclose expert opinions or exhibits, the undisclosed matter
is automatically excluded at trial, unless there is "substantial
justification"
for the failure or the "failure is harmless." See
White v. Howmedica, Inc., 490 F.3d 1014, 1016 (8th Cir. 2007).
-
Fed. R. Civ. P. 26(A)(2)(A).
-
Fed. R. Evid. 702.
-
Fed. R. Evid. 701.
-
Fed. R. Evid. 701, Advisory Committee Note–2000
Amendment.
-
United States v. Peoples, 250
F.3d 630, 641 (8th Cir. 2001); see also United States v. Shedlock,
62 F.3d 214, 219 (8th Cir. 1995); C.H. Robinson Worldwide,
Inc. v. Ghiradelli Chocolate Co., No. 03-2978 (JRT/FLN), at
*2 (D. Minn. 05/23/05).
-
Fed. R. Evid. 701, Advisory Committee Notes–2000
Amendment.
-
Id.
-
Blandin Paper Co. v. J&J Industrial
Sales, Inc., No. Civ.02-4858 ADM/ RLE, 2004 WL 1946388, at
*3 (D. Minn. 09/02/04).
-
Medtronic, Inc. v. Boston Scientific
Corp., No. 99-1035 RHK/FLN, slip. op. at 50 (D. Minn. 08/08/02).
-
Fed. R. Evid. 701, Advisory Committee Note–2000
Amendment.
-
Id.; Bberco v. Metrix
Co., 324 F.3d 955, 963 (8th Cir. 2003); Eckelkamp v.
Beste, 315 F.3d 863, 872 (8th Cir. 2002).
-
Hartzell Mfg., Inc. v. American Chemical
Technologies, Inc., 899 F. Supp. 405, 409 (D. Minn. 1995).
-
Freedom Wireless, Inc. v. Boston Communications
Group, Inc., 369 F. Supp. 2d 155, 158 n. 1 (D. Mass. 2005).
-
CardioVention, Inc. v. Medtronic,
Inc., 483 F.Supp.2d 830, 847 (D. Minn. 2007).
-
Hosteny, Joseph N., "Being Cheaper:
Keeping Litigation Costs Down," Intellectual Property
Today, January 2007 at 35.
-
Fed. R. Civ. P. 26(a)(2)(B).
-
Fed. R. Civ. P. 26(a)(2)(B), Advisory Committee
Note–1993 Amendment.
-
Id.
-
Navajo Nation v. Norris, 189
F.R.D. 610, 613 (E.D. Wash. 1999); Bank of China v. NBM LLC,
359 F.3d 171, 182 n. 13 (2d Cir. 2004); Bowling v. Hasbro,
Inc., No. 05-229S, 2006 WL 2345941, at *2 (D.R.I. 08/06).
-
See, e.g., Dyson Tech. Ltd. v. Maytag
Corp., 241 F.R.D. 247, 249 (D. Del. 2007); KW Plastics
v. U.S. Can Co., 199 F.R.D. 687, 688 (M.D. Ala. 2000); Storage
Technology Corp. v. Custom Hardware Engineering &
Consulting, Ltd., No. 02-12102-RWZ, 2006 WL 1766434, *36 (D.
Mass. 06/28/06); Day v. Consol. Rail Corp., No. 95 CIV
968 (PKL), 1996 WL 257654, at * 1-3 (S.D.N.Y. 05/15/96).
-
3M v. Signtech USA, Ltd., 177
F.R.D. 459, 461 (D. Minn. 1998) (Lebedoff, M.J.).
-
Duluth Lighthouse for the Blind v.
C.G. Bretting Mfg. Co., 199 F.R.D. 320, 325 (D. Minn. 2000)
(Erickson, M.J.).
-
Medtronic, Inc. v. Boston Scientific
Corp., No. 99-1035 RHK/FLN, slip. op. at 49-52 (D. Minn. 08/08/02)
(Kyle, J.) (citing KW Plastics v. U.S. Can Co. 199 F.R.D.
687, 690 (M.D. Ala. 2000)).
-
Holder v. Gold Fields Mining Corp.,
No. 04-CV-0564-CV-PJC, 2007 WL 128224, at *4-5 (N.D. Okla. 01/11/07).
-
Fed. R. Civ. P. 26(a)(2)(B).
-
Fed. R. Civ. P. 26(a)(2)(B), Advisory Committee
Notes–1993 Amendment.
-
Id.
-
Sylla-Sawdon v. Uniroyal Goodrich
Tire Co., 47 F.3d 277, 283-84 (8th Cir. 1995).
-
Campbell v. McMillin, 83 F.
Supp. 2d 761, 764-65 (S.D. Miss. 2000).
-
Fed. R. Civ. P. 26(a)(2)(B).
-
Fed. R. Civ. P. 26(a)(2)(B), Advisory Committee
Notes–1993 Amendments.
-
See Trigon Ins. Co. v. United States,
204 F.R.D. 277, 291-95 (E.D. Va. 2001).
-
Trigon Ins. Co., 204 F.R.D.
at 291-95; Indiana Ins. Co. v. Hussey Seating Co., 176
F.R.D. 291, 292-93 (S.D.Ind.1997); but see In re Jackson National
Life Insurance Company Premium Litigation, No. 96-MD-11222,
2000 WL 33654070 (W.D. Mich. 02/08/00).
-
Crowley v. Chait, 322 F. Supp.
2d 530, 545 (D.N.J. 2004).
-
Fed. R. Civ. P. 26(a)(2)(B), Advisory Committee
Notes–1993 Amendments.
-
Fed. R. Civ. P. 26(a)(2)(C).
-
Crowley, 322 F. Supp. 2d at
551.
-
Id.
-
Fed. R. Civ. P. 26(a)(2)(D).
-
Fed. R. Civ. P. 26(e)(1)(A), which applies
to all Rule 26(a) disclosures, including expert disclosures under
Rule 26(a)(2).
-
Fed. R. Civ. P. 26(e)(2); see, e.g., EZ
Dock, Inc. v. Schafer Sys., Inc., No. Civ.98-2364 (RHK/AJB),
2003 WL 1610781, at *10-11 (D. Minn. 03/08/03).
-
Fed. R. Civ. P. 26(b)(4)(B)(ii).
-
Joseph, Gregory P., "Engaging Experts," National
Law Journal, 04/18/05 at 12.
-
Fed. R. Civ. P. 26(b)(4)(B).
-
Id.
-
In re Pioneer Hi-Bred Intern., Inc.,
238 F.3d 1370, 1375 (Fed. Cir. 2001).
-
Dyson Tech., 241 F.R.D. at
251.
-
Trigon Ins, 204 F.R.D. at 284.
-
United States District Court District of
Minnesota, 2005 Advisory Committee’s Note to LR 16.2 and Form 4 and
5
COURTLAND MERRILL is an attorney at the Minneapolis
law firm of Anthony Ostlund Baer Louwagie & Ross P.A. He is a 2001 graduate
of the University of North Dakota School of Law. His practice focuses
on business litigation, including contract disputes, trade secret misappropriation,
patent and copyright infringement, noncompete agreements, and employment
disputes.