July 31, 2019 Practice Points

Sanctioning the Conduct of an Expert Witness

While excluding an expert witness for improper disclosures is not rare, imposing sanctions for the expert’s “abhorrent” behavior is.

By Angela S. Fetcher and Aaron Vance

Parties have several options when an opposing expert witness has not made full disclosures or is otherwise uncooperative. Specifically, parties may seek sanctions under Rules 30 and 37 of the Federal Rules of Civil Procedure. This is exactly what the defendants did in Carroll v. Allstate Fire and Casualty Insurance Company, No. 12-cv-00007-WJM-KLM (D. Colo. Mar. 4, 2014).

The Carroll litigation resulted from a car accident. Both parties involved in the accident ultimately settled. But to recover the remaining damages, the plaintiffs sought payment from Allstate under their underinsured-motorist benefits. When Allstate refused to pay, the plaintiffs filed a breach-of-contract claim. Through the course of discovery, the plaintiffs designated Gary Fye as their expert in claims practices. Fye did not make the proper disclosures pursuant to Fed. R. Civ. P. 26(a)(2)(B), and his conduct through his deposition was characterized as “abhorrent.” In response, the defendants sought sanctions under Rules 30 and 37 to disqualify or limit his expert testimony and to have him pay attorney fees related to the taking of his deposition.

Rule 37(c) precludes the use of expert testimony if Rule 26(a) has been violated by not disclosing the required information. Failures to disclose will be allowed by the court if the violating party can show that it was “substantially justified or harmless.” To guide its determination, the court relied on a four-factor test established by the Tenth Circuit. The court considered: "(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness."

Because Fye had not adequately disclosed the sources that he used to develop his expert testimony, the court determined that the obligations under Rule 26(a) had not been satisfied. The report was inadequate and provided no rationale concerning the decisions that Fye had reached. Neither Fye, nor the plaintiffs, provided any evidence that the failure to comply was substantially justified or harmless. Because the defendants had no information to develop their responses, and the prejudice could not be cured, the court determined that they had been harmed. Because of this harm, the court disqualified Fye’s expert testimony.

Next, the court considered the sanction of attorney fees in response to Fye’s conduct in his deposition. Rule 30(d)(2) permits a court to sanction any person who impedes or frustrates a deposition by paying the attorney fees incurred by the party examining a deponent. The moving party must identify the language or behavior that frustrated the deposition along with the proper sanction. In Carroll, the court found that Fye’s behavior, such as his flippant conduct in his deposition and unwillingness to cooperate, to be unnecessary and obstructionist, detrimental to the party conducting the deposition, and requiring sanctions.

The court thus granted the defendant’s request for sanctions regarding both Fye’s disclosures and his conduct at his deposition. The court found both the full exclusion of Fye’s testimony as an expert witness and his payment of attorney fees for costs incurred in his deposition to be appropriate.

While excluding an expert witness for improper disclosures is not rare, imposing sanctions for the expert’s behavior is. However, although extreme, where the conduct of a party or witness is so offensive to the judicial process, courts will not be hesitant to impose sanctions to correct conduct prejudicial to an adverse party. As a result, the decision to impose sanctions is left to the discretion of the court. Carroll provides a clear scenario where a court, in its discretion, did not shy away from either measure to rectify what it considered to be abhorrent conduct.

Angela S. Fetcher is a member of Stoll Keenon Ogden PLLC in Louisville, Kentucky. Aaron Vance is a summer associate with the firm, and a 2020 J.D. candidate at Indiana University Maurer School of Law.


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