On the one hand, courts apply Rule 26(a)(2)(B) as it is plainly written. For example, in Watson v. United States, 485 F.3d 1100 (10th Cir. 2007), the court affirmed the decision to admit the expert testimony of the clinical director at a federal prison facility despite the witness's failure to produce an expert report. The court noted that "while the Rule focuses on those who must file an expert report, by exclusion it contemplates that some persons are not required to file reports." Id. at 1107. The court held that because the witness was an employee of a party and the witness did not regularly give expert testimony, a report was not required pursuant to Rule 26(a)(2)(B). Id. In reaching this holding, the court delved into the reasoning behind Rule 26's report requirement for some experts but not others. The court noted that the Rule's drafters were concerned with disclosure of expert opinions in advance of trial, i.e., to avoid sandbagging an opponent, in addition to increasing discovery efficiencies, and thus the report requirement applied to most experts. Id.
Balanced against this, however, the court noted that the drafters were also concerned about diverting resources away from employers whose employees did not regularly give expert testimony. Id. Few can plausibly argue that the preparation of an expert report that meets the requirements of Rule 26(a)(2)(B) is not an arduous task, especially for a party's employee that does not regularly give expert testimony. While the drafters of the 1993 version of Rule 26 focused on one of the most common of such experts the treating physician—there was no intent to limit the scope of the report exemption to these types of experts.
In another case that applied the plain language of Rule 26, Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008), the court held that the government's expert witness, an officer deemed a gang specialist, should not have been permitted to testify without providing an expert report pursuant to Rule 26(a)(2)(B). The court based this holding solely on the witness's testimony that he was regularly employed to give expert opinions in court regarding gangs and thus fell "squarely in the category of witnesses to which Rule 26(a)(2)(B) applies." Id. at 1213.
On the other hand, courts have interpreted Rule 26(a)(2)(B) to implicitly require an expert report unless the witness's opinion was formed pre-litigation during the normal course of the employee's duties. For example, in Downey v. Bob's Discount Furniture Holdings, 633 F.3d 1, 7 (1st Cir. 2011), the court interpreted the report requirement to apply to an expert that is brought to the litigation "as a stranger and draws the opinion from facts supplied by others, in preparation for trial," and thus can be reasonably "viewed as retained or specially employed for that purpose" under Rule 26(a)(2)(B). Id. But the court reasoned that where the expert is part of the underlying sequence of events at issue in the litigation and their opinion arises from that involvement, the expert is not retained or specially employed and thus no report is required. The court acknowledged "that the difference between an opinion formulated by an on-the-scene expert during treatment . . . and one formulated by an expert hired in anticipation of testimony does not leap off the page," but a "close reading of the text of Rule 26(a)(2)(B) convinces us that this is the precise distinction that the drafters of the rule had in mind." Id.
The reasoning behind Downey was used by the court in Meredith v. International Marine Underwriters, Civ. No. JKB-10-837, 2011 WL 1466436 (D. Md. Apr. 18, 2011), to exclude an employee-expert's testimony. There, the court reasoned that an expert report is not required when the witness is an employee of a party but not specially employed for the purpose of giving expert testimony, and the witness's opinion "is based on facts learned or observations made 'in the normal course of duty.'" Id. at *4 (quoting Sullivan v. Glock, Inc., 175 F.R.D. 497, 500 (D. Md. 1997)). However, if the witness formed their expert opinion "specifically in anticipation of the litigation, or otherwise outside the normal course of a duty," a report is required. Id.
The court applied this framework to analyze the admissibility of the expert testimony of an employee who inspected the subject property prior to the accident at issue. Finding that the employee's opinion regarding causation could not have arisen during the pre-accident inspection, the court concluded that the employee's opinion fell into the category of a specially retained expert. Id.at *5. Because the witness did not produce an expert report, the court excluded the testimony. Id.
In another case, In re FEMA Trailer Formaldehyde Prods. Liability Litigation, MDL No. 07-1873, 2009 WL 2914175, *1 (E.D. La. Sept. 8, 2009), the court ordered the parties to produce expert reports regardless of a witness's status as an employee or a retained expert. The court reasoned that if this was not the case, "the potential for abuse of this rule would be great as attorneys might then wait until the last minute to list a 'non-retained expert' who has not produced an expert report." Id. The court did not address the language of Rule 26(a)(2)(B).
This split of authority left many wondering whether an expert report was required when a party considered offering the testimony of an employee-expert despite the plain language of the Rule. At least one commentator believed that courts "were reluctant to allow non-retained experts to testify with such little advance notice to the other party." Beeber and Sarig, Recent Amendments to Rule 26: How the Rules Affect the Attorney-Expert Relationship, PLI Order No. 31219, 129 (2011). This was certainly the reasoning of the In re FEMA Trailer court and likely explains the efforts by other courts to limit the report exemption despite Rule 26(a)(2)(B)'s plain language. Given this background, prudent counsel often erred on the side of producing an expert report regardless whether the expert witness was an employee or not.
In the wake of the 2010 amendments to Rule 26, there is hope that courts will more consistently follow the plain language of Rule 26(a)(2)(B). (On May 6, 2011, the United States Court of Federal Claims issued proposed amendments to the Rules of the Court of Federal Claims (RCFC). The proposed amendment to RCFC 26 tracks the corresponding changes to Fed. R. Civ. P. 26 that became effective December 1, 2010. Absent further notice from the court, the proposed amendments will take effect July 15, 2011.) Under new Rule 26(a)(2)(C), when a party discloses an expert witness who is not required to provide an expert report under Rule 26(a)(2)(B), the party's disclosure must now include a statement of "(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."
While the contents of this disclosure are less onerous than that of a expert report under Rule 26(a)(2)(B), it nonetheless presents a burden on the disclosing party and its employee-expert. The disclosure also provides a greater amount of information to the opposing party. This result will hopefully strike a balance between diverting resources from an employer that offers an employee-expert and the concern that Rule 26(a)(2)(B)'s report exemption will be used as a litigation tactic to sandbag opponents.
With new Rule 26(a)(2)(C) taking effect December 1, 2010, it is too early to pass judgment whether this disclosure requirement will affect courts' reluctance to apply the report exemption. However, the early returns do not bode well. In Meredith, 2011 WL 1466436, *7, the court applied new Rule 26(a)(2)(C) to those expert witnesses it found not subject to the report requirement. Yet, the court maintained its framework distinguishing pre- and post-litigation opinions formed by employee-experts to determine whether an expert report was required. And at least one other case, American Property Construction Co. v. Sprenger Lang Foundation, __ F.R.D. __, Civ. No. 09-01232, 2011 WL 1279341, *2–*4 (D.D.C. Mar. 14, 2011), applied the same framework as Meredith while also considering new Rule 26(a)(2)(C). Given these developments, and absent controlling precedent in the applicable jurisdiction, counsel would be wise to answer the question affirmatively and write the report.