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Federal Rule 26 Expert Witness Disclosures: A Primer

By John L. Tate and Erin C. Dougherty

Because expert testimony is so important in product liability litigation, disclosure is essential. Failure to comply with the rules governing disclosure can be fatal. A Rule 26 report disclosing proposed opinion testimony must meet specific and substantial criteria. Fed. R. Civ. P. 26(a)(2)(b). The report must contain, inter alia: 1) a complete statement of all opinions to be expressed and the basis or reasons therefor, and 2) the data or other information considered by the witness in forming the opinions. Fed. R. Civ. P. 26(a)(2)(B), Tompkin v. Phillip Morris, 362 F.3d 882, 895 (2004), Brainard v. American Skandia Life Ins. Sopr., 2005 WL 3533545 (6th Cir. 2005). The Advisory Committee Notes on Rule 26 elaborate on the report's requirements:

The report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness. The report is to disclose the data and other information considered by the expert and any exhibits or charts and summarize or support the expert's opinions. [Advisory Committee Notes, 146 F.R.D. at 634 (emphasis added).]

A Rule 26 report must contain more than conclusory assertions about ultimate issues. Brainard, supra, citing Viterbo v. Dow Chem. Co. 826 F.2d 420, 422 (5th Cir. 1987), quoting Hayes v. Douglas Dynamics, 8 F.3d 88, 92 (1st Cir. 1993). See also, Sharpe v. United States, 230 F.R.D. 452 (E.D. Va. 2000). The Rule 26 report must set forth facts that 'outline a line of reasoning arising from a logical foundation.' Brainard, supra, citing Am. Key. Corp. v. Cole Nat'l Corp., 762 F.2d 1569, 1579-1580 (11th Cir. 1985). 'An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.' Brainard, supra, citing Mid-State Fertilizer Co. v. Exch. Nat'l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989), citing Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 829-32 (D.C. Cir. 1988)).

The fundamental purpose of the Rule 26 requirements is to enable an opposing party to prepare for trial. This purpose substantially predates the 1993 revisions that created the 'signed report' requirement. The Advisory Committee Notes on the 1970 Amendments to Rule 26 emphasize that disclosure of expert testimony before trial is necessary if the opposing party is to have a reasonable opportunity to prepare effective cross-examination:

Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts frequently cannot anticipate the particular approach his adversary's expert will take or the data on which he will base his judgment on the stand ' the only substitute for discovery of experts' valuation materials is lengthy and often fruitless ' cross-examination during trial. See Fed. R. Civ. P. 26 Advisory Committee Notes on 1970 Amend-ments; See also King v. Ford Motor Company, 209 F.3d 886 (6th Cir. 2000); Sommer v. Davis, 317 F.3d 686, 690 (6th Cir. 2003).

The Exclusionary Consequences of Inadequate Disclosure

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