Journal of Air Law and Commerce Volume 83 | Issue 1 Article 4 2018 Federal Rule 26(a)(2) Expert Witness Disclosures: Strategies for Composing and Attacking Expert Disclosures Douglas B. Bates Stites & Harbison, PLLC, [email protected] Chelsea R. Stanley Stites & Harbison, PLLC, [email protected] James L. Burt III Maloney, Bean, Horn & Hull, P.C., [email protected] Follow this and additional works at: https://scholar.smu.edu/jalc Part of the Air and Space Law Commons, Civil Procedure Commons, and the Evidence Commons Recommended Citation Douglas B. Bates et al., Federal Rule 26(a)(2) Expert Witness Disclosures: Strategies for Composing and Attacking Expert Disclosures, 83 J. Air L. & Com. 67 (2018) https://scholar.smu.edu/jalc/vol83/iss1/4 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. FEDERAL RULE 26(A)(2) EXPERT WITNESS DISCLOSURES: STRATEGIES FOR COMPOSING AND ATTACKING EXPERT DISCLOSURES DOUGLAS B. BATES* CHELSEA R. STANLEY** JAMES L. BURT, III*** I. INTRODUCTION IVEN THE HIGHLY TECHNICAL ISSUES that typically Garise in aviation-related litigation, experts often play a criti- cal role. A plaintiff who fails to come forward with sound expert testimony in support of her theory of liability risks summary dis- missal. Conversely, any defendant who lacks expert testimony to support his defenses realistically faces a poor outcome. There are many steps that prudent aviation counsel should take to ensure that she has expert testimony at her disposal. Among these is compliance with the requirements of Federal Rule of Civil Procedure 26(a)(2). Even the most articulate ex- pert armed with the most technically sound opinions will do a party little good if the expert is excluded due to a failure to properly disclose during discovery. Those on the receiving end of flawed disclosures should be ready to: (a) limit the prejudice caused by the defect; and (b) when possible, use the flawed dis- closure to gain advantage, up to the exclusion of the expert’s * Douglas B. Bates is an experienced trial lawyer who has been with the firm of Stites & Harbison, PLLC since 1992. He regularly defends aviation clients, including airlines, major municipal airports, product manufacturers, aircraft mechanics, and fixed base operators. ** Chelsea R. Stanley is an associate at the Jeffersonville, Indiana and Louisville, Kentucky offices of Stites & Harbison, PLLC. She is a member of the firm’s Torts & Insurance Practice Service Group, and a significant portion of her practice is dedicated to representing aviation clients. *** James L. “Jim” Burt is a partner at Maloney, Bean, Horn & Hull, P.C. practicing aviation, insurance defense, product liability, business and commercial counseling, and commerical and general civil litigation. Additionally, Jim has been involved in the aviation industry as a private and military pilot for over forty years. 67 68 JOURNAL OF AIR LAW AND COMMERCE [83 testimony. Whether a party is in the position of preparing the disclosures or analyzing them for flaws, an understanding of the Rule’s requirements is crucial. II. THE RULE Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity of any witness who will provide expert testi- mony under Federal Rule of Evidence 702, 703, or 705.1 Absent a court order or stipulation, a party must make the required dis- closure—either a full report under Rule 26(a)(2)(B) or the more limited disclosure under Rule 26(a)(2)(C)—at least ninety days before trial.2 Expert opinions intended only as re- buttal testimony must be exchanged within thirty days of the ini- tial disclosure.3 A party also has a duty to supplement any incorrect or incomplete information provided in her expert dis- closures by the time the party’s pretrial disclosures are due.4 However, this rule does not provide an opportunity to disclose new opinions after the original deadline for expert disclosures has passed.5 A. RETAINED VS. NON-RETAINED EXPERTS Prior to 2010, Rule 26(a) required a full written report from an expert who was either retained to provide expert testimony or was an employee that regularly gave expert testimony (re- tained experts).6 The 2010 amendment to Rule 26(a) kept in place the full written report requirement for retained experts but added a less extensive disclosure requirement for all other experts (non-retained, or percipient, experts).7 A party who in- tends to elicit opinions from a non-retained expert must now only disclose the subject matter of that expert’s testimony and a 1 FED. R. CIV. P. 26(a). 2 Id. 26(a)(2)(D)(i). 3 Id. 26(a)(2)(D)(ii). 4 Id. 26(a)(2)(E). 5 Trinity Homes, LLC v. Ohio Cas. Ins. Co. Group, No. 1:04-cv-01920-SEB- DML, 2011 U.S. Dist. LEXIS 61701, at *9 (S.D. Ind. June 8, 2011) (“Although Rule 26(e) does not itself define the word ‘supplement’ except in terms of re- quiring a timely supplement to fix a discovery response that is incorrect or in- complete in a material respect, common sense suggests (and numerous decisions confirm) that an expert report that discloses new opinions is in no way a mere supplement to a prior report.”). 6 FED. R. CIV. P. 26(a)(2)(B) (2009). 7 Id. 26(a)(2)(B), (C) (2010). 2018] FEDERAL RULE 26(A)(2) 69 summary of the facts and opinions to which that expert is ex- pected to testify.8 A non-retained expert witness is one whose “opinion arises not from her ‘enlistment as an expert,’ but rather from her ‘ground-level involvement in the events giving rise to the litiga- tion.’”9 It is possible for a witness to be a non-retained expert with regard to certain portions of her testimony and a retained expert as to other portions.10 If a party seeks to elicit testimony from a non-retained expert witness “based upon facts, evidence, or expertise outside the scope” of the expert’s individual obser- vations, the expert must comply with the report requirements of Rule 26(a)(2)(B) imposed on retained experts.11 The party seeking to avoid submitting a Rule 26(a)(2)(B) ex- pert report bears the burden of proving that the report is not required because the witness is a non-retained witness.12 A party does not get to pick and choose between the requirements of Rule 26(a)(2)(B) and Rule 26(a)(2)(C) based on what is conve- nient for her; “[i]t is the nature of the testimony . that deter- mines whether a witness is exempt from the disclosure and report requirements.”13 B. REPORT REQUIREMENTS FOR RETAINED EXPERTS Under Rule 26(a)(2)(B), a party that intends to rely upon the testimony of a retained expert witness “is required to furnish . a report containing, among other information, ‘a complete statement of all opinions’ the retained expert will provide, ‘and the basis and reasons for them.’”14 So, “[s]imply disclosing the 8 Id. 26(a)(2)(C) (2017). 9 Speare Tools, Inc. v. Klein Tools, Inc., No. 13-C-324, 2014 U.S. Dist. LEXIS 96541, at *4 (E.D. Wis. July 15, 2014) (quoting Downey v. Bob’s Discount PT Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011)). 10 See, e.g., Meredith v. Int’l Marine Underwriters, No. JKB-10-837, 2011 U.S. Dist. LEXIS 41619, at *11 (D. Md. Apr. 18, 2011); Sullivan v. Glock, 175 F.R.D. 497, 500 (D. Md. 1997) (stating that the distinction lies in the “source of the facts on which the witness’ expert opinion is based. To the extent that a witness’ opinion is based on facts learned or observations made ‘in the normal course of duty,’ the witness is a [percipient witness] and need not submit a [full] report.”). 11 See, e.g., In re World Trade Ctr. Lower Manhattan Disaster Site Litig., No. 09- cv-00680, 2014 U.S. Dist. LEXIS 156976, at *52 (S.D.N.Y. Nov. 5, 2014). 12 Cinergy Communs. Co. v. SBC Communs., No. 05-2401-KHV-DJW, 2006 U.S. Dist. LEXIS 80397, at *10 (D. Kan. Nov. 2, 2006). 13 Brainstorm Interactive, Inc. v. Sch. Specialty, Inc., No. 14-cv-50-wmc, 2014 U.S. Dist. LEXIS 158891, at *5-6 (W.D. Wis. Nov. 10, 2014) (quoting 6 JAMES WM. MOORE,MOORE’S FEDERAL PRACTICE § 26.23[2][a][i]). 14 Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008). 70 JOURNAL OF AIR LAW AND COMMERCE [83 expert’s name and contact information is not enough: A litigant has not complied with the disclosure requirement until she has disclosed the expert’s written report.”15 The report must comply with the precise standard set forth in Rule 26(a)(2)(B). The report must contain: (1) a complete statement of all opinions to be expressed and the basis and rea- sons therefore; (2) the facts or data considered by the witness in forming her opinion; (3) any exhibits that will be used to sum- marize or support her opinion; (4) the witness’s qualifications, including a list of her publications for the previous ten years; (5) a list of all other cases in which she has testified in the previous four years; and (6) a statement of the compensation to be paid for her testimony.16 The report may not merely set forth an ultimate opinion with- out providing “a line of reasoning arising from a logical founda- tion.”17 The report “‘must not be sketchy, vague, or preliminary in nature,’ and it must include ‘how’ and ‘why’ the expert reached a particular result, not merely the expert’s conclusory opinions.”18 Thus, “Rule 26(a) requires that the expert report contain the basis and reasons for each opinion.”19 There is “a well-accepted notion that expert witnesses cannot testify about facts or data, but fail to disclose the same.”20 Where an expert “has not identified specific facts or data considered .