At first blush, the expert disclosure requirements under federal law seem relatively straightforward. In practice, they can be quite complicated, confusing, and, at times, seemingly unfair. These concerns are magnified when the disclosures made during discovery come into focus at trial. This article seeks to point out some of the more problematic issues with regard to expert disclosure that can be encountered at trial, as recently experienced by the author. While the trial of MOC v. Pace was conducted under California law, the experiences are easily translated into federal law: California's Civil Discovery Act was substantially adopted from the federal rules of discovery. See Greyhound Corp. v. Superior Court, 364 P.2d 266, 272–74 (Cal. 1961), superseded by statute on other grounds. Some of the experiences discussed herein will have analogous application in the courts of other states that have also patterned their discovery rules after the federal rules.
Federal Rules on Expert Disclosure and Reports
Expert disclosure requirements are governed in federal court by Federal Rule of Civil Procedure 26(a)(2). Unless otherwise ordered by the court, the parties must disclose the identity of any witness who will provide expert witness testimony pursuant to Federal Rule of Evidence 702, 703, or 705 at least 90 days before trial. Information regarding rebuttal experts must be exchanged within 30 days of the initial disclosure. Fed. R. Civ. Proc. 26(a)(2). In this author's experience, federal judges will issue orders that are consistent with these guidelines, but often take into consideration the needs of the case and/or the parties in setting the actual dates for exchange of expert information.
For most experts, a written report is required. The report must be prepared and signed by the expert, and must contain a complete statement of all opinions that the expert intends to offer at trial and the basis and reasons therefore. Fed. R. Civ. P. 26(a)(2)(A), (B). The purpose of the report requirement is to allow opposing parties to prepare for trial and to obtain the views of their own expert on the opinions that will be offered. Rembrandt Vision Techs., L.P. v. Johnson & Johnson Vision Care, Inc., 725 F.3d 1377, 1381 (Fed. Cir. 2013); Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 762 (7th Cir. 2010).
Failure to comply with Rule 26(a) has significant consequences, including Rule 37's "self-executing sanction." Fed. R. Civ. P. 37(c), advisory committee notes. An expert witness may not testify to subject matter beyond the scope of the witness's expert report unless the failure to include that information in the report was "substantially justified or harmless." Fed. R. Civ. P. 37(c)(1). The burden is on the party facing sanctions to prove that its failure to comply with Rule 26(a) was "substantially justified or harmless." Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).
Rembrandt, 725 F.3d at 1381. Unless the party who has failed to fully and completely comply with Rule 26(a)'s disclosure requirements can show that its failure to fully comply was either "substantially justified" or "harmless," the expert may not be allowed to testify to particular undisclosed opinions or, more concerning, at all. Fed. R. Civ. P. 37(c). Even when compliance is full and complete, however, there are times as discussed below when expert opinions will be excluded.
The likelihood of improper exclusion is more pronounced when years of protracted litigation have resulted in a convoluted and confusing discovery record that must be referred to "on the fly" at trial. The case of Meyer Intellectual Properties Ltd. v. Bodum, Inc., 690 F.3d 1354 (Fed. Cir. 2012), serves as an excellent example of what can go wrong at trial of such a case.
In this appeal of a jury verdict in favor of the plaintiff in a patent infringement case, the Federal Circuit Court of Appeals found that the trial court had improperly limited the scope of testimony of the defendant's expert on prior art. The trial court had done so on the grounds that, in his report, the expert had limited himself to only two examples of prior art. Finding that the trial court had abused its discretion when it limited the defendant's expert to only the two examples of prior art, the appellate court found after a detailed review of the expert report and voluminous discovery record that the opinion of the defendant's expert on obviousness "was not, as the district court found, limited to just two pieces of prior art." Meyer, 690 F.3d at 1372–73. Based on this and one other error, the appellate court vacated the verdict and remanded the matter for a new trial.
In the press of trial and in the face of an extensive discovery record, the trial court had made a grievous error of judgment that, in that case, resulted in a verdict for the plaintiff. Meyer, 690 F.3d at 1358. While the defendant was ultimately vindicated on appeal, no attorney wants to have to explain to his or her client why their expert will not be allowed to testify on specific topics: not every case merits the cost and heartache that are involved in an appeal such as the one that played out in the Meyer case.
There are at least two important lessons to be learned from the experience of the Meyer case. First, trial counsel is well-advised to make sure that their experts' reports are clear and complete, containing all opinions that might be offered at trial and containing the support for those opinions the expert intends to rely upon. Second, trial counsel should be prepared with a detailed knowledge of all discovery and responses in the case, so that reference can be made to that discovery contemporaneous with any dispute over the completeness of expert disclosures. Issue coding and indexing of expert depositions, interrogatory responses, and the like are highly recommended, especially where the stakes are high and the record is voluminous. Such preparatory measures allow quick and efficient reference in any dispute and reduce the chances that an erroneous exclusion order will be given.
In MOC v. Pace, numerous disputes arose over whether certain experts had provided opinions during deposition that were being offered at trial. The press of trial demands made it difficult to respond quickly and efficiently to these disputes. Issue coding and indexing helped ease this burden substantially.
Properly Identifying Experts
Another example of the effects of failing to properly disclose is the ability of courts to exclude expert testimony when fact witnesses have not been properly identified as testifying experts. Where, for example, treating physicians are expected to provide not only factual testimony but opinion testimony as well, their identities as testifying experts must be disclosed. Musser v. Gentiva Health Servs., 356 F.3d 751, 756 (7th Cir. 2004). In MOC v. Pace, there was an issue with the client's designation of "percipient expert witnesses" that threatened those witnesses' abilities to provide opinion testimony. Thankfully, the other side also had not fully complied with the disclosure obligations and, under California law, therefore had no standing to object. The result was that the "percipient expert witnesses" were able to provide opinion testimony.
Because expected areas of expert testimony may not be fully appreciated at the time of disclosure, it is prudent practice to designate as testifying experts any witness who might conceivably have opinions that bear on the issues to be tried. Experts can always be withdrawn later. Where the percipient expert's opinions are not helpful, redesignation as a consulting expert may protect those opinions from disclosure. Hartford Fire Ins. Co. v. Transgroup Express, Inc., 264 F.R.D. 382, 384 (N.D. Ill. 2009); Ross v. Burlington N. R.R. Co., 136 F.R.D. 638, 639 (N.D. Ill. 1991). Care should be taken however: the waiver of the attorney-client privilege and work product protections that occurs when documents and information are provided to an expert cannot be undone by redesignation. CP Kelco U.S. Inc. v. Pharmacia Corp., 213 F.R.D. 176, 179 (D. Del. 2003).
Another issue arose during MOC v. Pace involving the distinction between testifying and consulting experts. While parties are required to disclose the identity and expected opinions of experts who will testify at trial, they are not required to identify experts retained solely as consulting experts; facts known and opinions held by consulting experts are protected from disclosure absent "exceptional circumstances." Fed. R. Civ. P. 26(b)(4)(D); Ibrahim v. Dep't of Homeland Sec., 669 F.3d 983, 999 (9th Cir. 2012). Indeed, "Rule 26(b)(4)(D) . . . establishes a high barrier to discovering opinions of a non-testifying consultant." Sara Lee Corp. v. Kraft Foods Inc., 273 F.R.D. 416, 419–20 (N.D. Ill. 2011). Accordingly, where the identity, opinions, or information possessed by the consulting expert are of peculiar significance and/or can only be obtained from the consulting expert, disclosure may be allowed.
Protections can be afforded to an expert who has been retained in a dual capacity—both to testify at trial to certain opinions and also to provide consulting services. But the astute practitioner needs to be careful: if the documents reviewed or generated by the expert serving in a dual capacity are germane to the subject matter on which the expert will testify, then disclosure may be required. S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., 257 F.R.D. 607, 614 (E.D. Cal. 2009); B.C.F. Oil Refining, Inc. v. Consol. Edison Co. of N.Y., Inc., 171 F.R.D. 57, 62 (S.D.N.Y. 1997). Accordingly, it is prudent practice not to retain experts in a dual capacity if it can be avoided. Where resources are available and the case merits it, separate experts should be retained and counsel should carefully control communications between them.
This latter caution was experienced firsthand by the author in the MOC v. Pace trial. Although that case was decided under California state law, the principles applied by the court and the lessons to be learned are equally applicable in federal court. In MOC v. Pace, a situation arose where the opposing party's testifying expert was confronted with a document found in his file over which the plaintiff's counsel claimed attorney work product protections. While the court ultimately ruled that the document in question was protected by the attorney work product doctrine, opposing counsel was forced to present a declaration stating the basis for the claimed privilege and provide more detail than counsel probably would have otherwise wanted to provide. The lesson to be learned is that testifying experts simply should not occupy a consulting role.
Keywords: litigation, commercial, business, expert witness disclosure, expert report, scope of expert testimony, discovery record, percipient expert witness, testifying vs. consulting expert
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