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To
determine whether proposed testimony is expert testimony, one turns
to Rule 702 of the Federal Rules of Evidence, which states that a
witness who is “qualified as an expert by knowledge, skill, experience,
training, or education” may testify to “scientific, technical or other
specialized knowledge” in the form of opinion or otherwise where such
knowledge “will assist the trier of fact to understand the evidence
or to determine a fact in issue.”3 The inquiry does not stop with
Rule 702. Equally important is Federal Rule of Evidence 701 which
limits the opinions of lay witnesses. Rule 701 provides: “If the witness
is not testifying as an expert, the witness’ testimony in the form
of opinions or inferences is limited to those opinions … based on
the perception of the witness …[and …] not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702.”4 Rule
701 is intended to prohibit parties from evading the expert disclosure
requirements by offering what amounts to expert testimony from lay
witnesses, such as the parties or their employees.5 Under Rule 701,
lay testimony may not “provide specialized explanations or interpretations
that an untrained lay person could not make if perceiving the same
acts or events.”6 Rule 701 “does not distinguish between expert and
lay witnesses, but rather
between expert and lay testimony.”7
Thus, “any part of a witness’ testimony that is based upon scientific,
technical or other specialized knowledge within the scope of Rule
702 is governed by the standards of Rule 702 and the corresponding
disclosure requirements of the Civil … Rules.”8 Courts
can and will exclude lay opinions that fail to comply with Rule 701.
In Blandin Paper Co. v. J&J Industrial Sales,
Inc., Judge Montgomery prohibited fact witnesses not identified
as experts from opining whether a cleaning solvent containing hydrochloric
acid damaged machinery.9 Similarly, in Medtronic,
Inc. v. Boston Scientific Corp., Judge Kyle concluded that testimony
by employees of a party, concerning whether certain physical properties
were present in “shape memory alloys” used in coronary stents, was
in fact expert testimony.10 Judge Kyle determined that the employees’
testimony fell within the scope of Rule 702 because it relied on inferences
gained from specialized training and that could not be perceived by
the five senses. Lay
testimony does not, however, become expert testimony simply as a result
of the particularized knowledge that the witness has by virtue of
holding a position in the business.11 Most courts have permitted the
owner or officer of a business to testify to the value or projected
profits of the business without the necessity of qualifying the witness
as an accountant, appraiser, or similar expert.12 A fact witness may
testify to personal observations which relate to the subject matter
of litigation, or knowledge gained from industry experience or review
of records prepared in the ordinary course of business; a fact witness
may neither respond to hypothetical facts nor review documents that
are extraneous to the witness’ personal knowledge merely to form opinion
testimony.13 Given
the fuzzy boundary between lay and expert testimony, one strategy
to prevent exclusion is to identify any fact witness as an expert
if there is any risk the witness’ testimony might be deemed expert
testimony. Courts that have excluded lay opinion testimony have indicated
that the testimony would have been permissible had the witness been
timely identified as an expert.14 Indeed, the best expert may very
well be your client or one of its employees. Courts routinely permit
expert testimony by a party, employee, or other with interest in the
outcome of the litigation where the person has been identified as
an expert and has complied with disclosure requirements. Witnesses
with a pecuniary interest in the outcome of the case may serve as
experts.15 A witness’ pecuniary interest goes to the probative weight
of testimony, not its admissibility. Moreover, you can avoid the high
cost of an outside expert by using your own client or an employee
as an expert. You may be better off with your client as an expert—one
who believes in the case and who will be very credible, if well prepared.16 There
is a split in authorities concerning whether employee experts must
submit written reports. Some courts have found that employee experts
are exempt from the written report requirement when they are not specially
employed to provide expert testimony and do not regularly testify
as experts.20 These courts rely on the logic that if the drafters
of Rule 26(a)(2)(B) had intended to impose an obligation on all employee
experts, they could have and would have done so. Other courts have
declined to recognize an exemption to the report requirement for employee
experts.21 This view finds that an exemption from the written report
requirement for employee experts would create a distinction at odds
with the purpose of Rule 26(a)(2)(B), which is to promote full disclosure
of expert information. Minnesota
federal courts have been less than uniform as to whether employee
experts must submit reports. In 3M
v. Signtech USA, Ltd., Magistrate Lebedoff ruled that employees
testifying as “fact or hybrid fact/expert witnesses” were “retained
or specially employed” for purposes of Rule 26(a)(2)(B) and were required
to submit reports.22 However, in Duluth
Lighthouse for the Blind v. C.G. Bretting Mfg. Co., Magistrate
Erickson was “not persuaded that the [c]ourt, in Signtech,
reached the correct result.” 23
Magistrate Erickson concluded that a plain reading of Rule 26(a)(2)(B)
excludes employee experts not specially retained to testify and who
do not routinely perform that function. In a subsequent unpublished
case, Judge Kyle concluded that “the distinction drawn by the magistrate
judge in [Signtech] between ‘fact or hybrid fact/expert witnesses’ and ‘expert
witnesses’ appears to run counter to the evidentiary rule on expert
testimony.”24 Judge Kyle nonetheless determined that when a corporation
identifies an employee as an expert who does not normally provide
expert testimony, that the employee has been “specially employed”
and a report is required. Given
this lack of clarity, a practitioner relying on employee expert testimony
may well consider voluntarily complying with the written report requirement.
Agreeing to provide a report from an employee expert could provide
an additional assurance against exclusion and avoid a costly dispute.
In any event, courts may order submission of a report as a means of
fulfilling the court’s own gatekeeper duties under Daubert,
even when an expert is not automatically required to do so.25 How Much Detail? In
addition to opinions and bases, an expert report must contain the
expert’s qualifications, all of the data or other information considered
in forming the opinions, all summary or supporting exhibits, all publications
authored in the preceding ten years, compensation the expert was paid,
and a listing of all cases in which the expert gave prior deposition
or trial testimony within the preceding four years.26 The advisory
committee notes state that the report must be “detailed and complete.”27
These notes also explain that the purpose of the report is to avoid
the disclosure of “sketchy and vague” expert information.28 Case
law instructs that a “complete and detailed” report contains the substance
of the direct examination sufficient to qualify the
witness as an expert and establish the admissibility of the expert’s
opinion without the need for additional testimony or information.29
Reports have been excluded where the opinions were unsupported except
by general reference to records or omitted qualifications, compensation,
and previous testimony.30 Compiling
an expert’s qualifications, publications and prior testimony are things
that should be done when the expert is engaged. If a potential expert
has difficulty providing this information, alarm bells should sound
as to whether the expert is someone that you want to rely on at trial.
If
required, the report must be “prepared and signed by the witness.”31
The advisory committee notes say that this requirement “does not preclude
counsel from providing assistance to experts in preparing the report.”32
Counsel may assist in the preparation of an expert’s report, so long
as the report is written in a manner that reflects the expert’s opinions
and is signed by the expert. Several courts have addressed the
permissible amount of attorney involvement in drafting an expert report.
These courts conclude that as long as the substance of the opinions
is from the expert, the attorney’s involvement in the written expression
of those opinions does not make them inadmissible, but caution that
a report drafted entirely by counsel without prior substantive input
from an expert would read the word “prepared” completely out of the
rule.33 Most attempts to exclude expert testimony on the grounds that
the report was “ghost-written” by counsel prove unsuccessful.34 Courts have rejected a formalistic approach which would “require that
the expert be the person who actually puts pen to paper (or fingers
to keyboard).”35 In
a perfect world, all experts will prepare their own reports that comply
with each element of Rule 26(a)(2)(B) and Daubert,
with little assistance from counsel. This isn’t reality. Many experts
will need significant assistance from counsel to prepare their report.
The advisory committee notes identify an automobile mechanic as an
example of an expert who might potentially need assistance in preparing
a report.36 Disputes over who authored an expert report usually uncover
little evidence of value, detract from the merits, and unnecessarily
increase costs. Submitting & Supplementing Absent
a stipulation or specific date ordered by the court (as trial courts
commonly do), the report required by Rule 26(a)(2)(B) must be submitted
90 days before trial or, if intended solely to rebut another party’s
proposed expert testimony, within 30 days after the other party’s
disclosure.37 A rebuttal report is limited to explaining or disproving
evidence of the adverse party; it is not an opportunity to correct
oversights in the party’s case-in-chief.38 A rebuttal report should
not be excluded on the grounds that the expert could have included
the information in the original report so long as the new information
is limited in scope to matters raised by the opposing expert’s disclosure.39 Parties
must supplement the disclosures made in the report “when required
under Rule 26(e).”40 Rule 26(e) has two requirements applicable to
experts. First, a party must timely supplement or correct if the party
“learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during the
discovery process or in writing.”41 Second, Rule 26(e)(2) requires
the expert to supplement the information in his report before the
date the party’s pretrial disclosures are due under Rule 26(a)(3).42
Expert Discovery Federal
Rule of Civil Procedure 26(b)(4) governs expert discovery. The scope
of discovery depends on whether the expert will testify at trial.
The work product of consulting experts is generally undiscoverable
except upon showing of exceptional circumstances.43 Consequently,
all experts should be retained, at the outset of the engagement, as
consulting experts. Unless and until you are required to designate
testifying experts pursuant to Rule 26(a)(2)(A) or (B) (or the pretrial
order), you don’t know with certainty whether you will need a testifying
expert or, if you do, whether the experts initially retained will
ultimately be the right ones for trial, in light of the evolution
of the case through discovery and motion practice.44 Testifying
experts may be deposed regardless of whether or not they submit a
report.45 If an expert must submit a report, the deposition shall
not be conducted until after the report is submitted.46 Communications
with testifying experts are generally not privileged. Release of materials
to a testifying expert waives a work product claim. In In re Pioneer Hi-Bred Intern., Inc., the Federal Circuit concluded
that under 8th Circuit law, documents and information disclosed to
a testifying expert in connection with the expert’s testimony are
discoverable by the opposing party, whether or not the expert relies
on the documents and information in preparing her report.47 In the
advisory committee notes, the drafters observe: “litigants should
no longer be able to argue that materials furnished to their experts
to be used in forming their opinions—whether or not ultimately relied
upon by the expert—are privileged or otherwise protected from disclosure
when such persons are testifying or being deposed.” While
Rule 26(a)(2)(B) requires the disclosure of all materials considered
by a party’s employee designated as a testifying expert regardless
of attorney-client or work-product privilege, the scope of such waiver
does not extend to information and/or documents that an employee-expert
may have considered in performing his general job duties but did not
consider in connection with formulating the opinions expressed within
the report.48 Therefore, employees may serve as experts without waiving
privilege concerning information unrelated to the opinions they intend
to offer at trial. Even
if such drafts are discoverable, the discovery of drafts of expert
reports rarely provides substantial benefits. One needs only to read
the Trigon Ins. Co. v. United States case from the Eastern District of Virginia
and wonder as to the amount of money spent on the extraneous dispute
concerning draft reports. Thankfully, at least in the District of
Minnesota, there appears to be a trend away from discovery of draft
reports. The 2005 Patent Advisory Committee for the District of Minnesota,
which made recommendations with respect to local rules for patent
cases, made a specific recommendation to end wasteful motion practice
regarding the discovery of draft reports. Those recommendations resulted
in the District of Minnesota adopting local rules applicable to patents
cases which encourage parties to agree in advance as to the discoverability
of drafts of expert reports and provide that in the absence of agreement,
drafts are not discoverable.50 While these local rules apply only
to patent cases, they provide a template that could be utilized in
other complex cases as a way to avoid disputes over draft reports.
2 Fed. R. Civ. P. 26(A)(2)(A). 3 Fed. R. Evid. 702. 4 Fed. R. Evid. 701. 5 Fed. R. Evid. 701, Advisory Committee Note–2000 Amendment. 6 United States
v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001); see also United States v. Shedlock,
62 F.3d 214, 219 (8th Cir. 1995); C.H. Robinson Worldwide, Inc. v. Ghiradelli Chocolate Co., No. 03-2978
(JRT/FLN), at *2 (D. Minn. 05/23/05). 7 Fed. R. Evid. 701, Advisory Committee Notes–2000 Amendment. 8 Id. 9 Blandin Paper
Co. v. J&J Industrial Sales, Inc., No. Civ.02-4858 ADM/RLE,
2004 WL 1946388, at *3 (D. Minn. 09/02/04). 10 Medtronic, Inc.
v. Boston Scientific Corp., No. 99-1035 RHK/FLN, slip. op. at
50 (D. Minn. 08/08/02). 11 Fed. R. Evid. 701, Advisory Committee Note–2000 Amendment.
12 Id.; Bberco v. Metrix Co., 324 F.3d 955, 963
(8th Cir. 2003); Eckelkamp v.
Beste, 315 F.3d 863, 872 (8th Cir. 2002). 13 Hartzell Mfg.,
Inc. v. American Chemical Technologies, Inc., 899 F. Supp. 405,
409 (D. Minn. 1995). 14 Freedom Wireless,
Inc. v. Boston Communications Group, Inc., 369 F. Supp. 2d 155,
158 n. 1 (D. Mass. 2005). 15 CardioVention,
Inc. v. Medtronic, Inc., 483 F.Supp.2d 830, 847 (D. Minn. 2007).
16 Hosteny, Joseph N., “Being Cheaper: Keeping Litigation
Costs Down,” Intellectual Property
Today, January 2007 at 35. 17 Fed. R. Civ. P. 26(a)(2)(B). 18 Fed. R. Civ. P. 26(a)(2)(B), Advisory Committee Note–1993
Amendment. 19 Id. 20 Navajo Nation
v. Norris, 189 F.R.D. 610, 613 (E.D. Wash. 1999); Bank of China v. NBM LLC, 359 F.3d 171, 182 n. 13 (2d Cir. 2004);
Bowling v. Hasbro, Inc., No. 05-229S, 2006
WL 2345941, at *2 (D.R.I. 08/06). 21 See, e.g., Dyson
Tech. Ltd. v. Maytag Corp., 241 F.R.D. 247, 249 (D. Del. 2007);
KW Plastics v. U.S. Can Co., 199 F.R.D.
687, 688 (M.D. Ala. 2000); Storage
Technology Corp. v. Custom Hardware Engineering & Consulting,
Ltd., No. 02-12102-RWZ, 2006 WL 1766434, *36 (D. Mass. 06/28/06);
Day v. Consol. Rail Corp., No. 95 CIV 968 (PKL), 1996 WL 257654, at
* 1-3 (S.D.N.Y. 05/15/96). 22 3M v. Signtech
USA, Ltd., 177 F.R.D. 459, 461 (D. Minn. 1998) (Lebedoff, M.J.). 23 Duluth Lighthouse
for the Blind v. C.G. Bretting Mfg. Co., 199 F.R.D. 320, 325 (D.
Minn. 2000) (Erickson, M.J.). 24 Medtronic, Inc.
v. Boston Scientific Corp., No. 99-1035 RHK/FLN, slip. op. at
49-52 (D. Minn. 08/08/02) (Kyle, J.) (citing
KW Plastics v. U.S. Can Co. 199 F.R.D. 687, 690 (M.D. Ala. 2000)). 25 Holder v. Gold
Fields Mining Corp., No. 04-CV-0564-CV-PJC, 2007 WL 128224, at
*4-5 (N.D. Okla. 01/11/07). 26 Fed. R. Civ. P. 26(a)(2)(B). 27 Fed. R. Civ. P. 26(a)(2)(B), Advisory Committee Notes–1993
Amendment. 28 Id. 29 Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 283-84 (8th Cir. 1995). 30 Campbell v. McMillin, 83 F. Supp. 2d 761, 764-65 (S.D. Miss. 2000). 31 Fed. R. Civ. P. 26(a)(2)(B). 32 Fed. R. Civ. P. 26(a)(2)(B), Advisory Committee Notes–1993
Amendments. 33 See Trigon Ins. Co. v. United States, 204 F.R.D.
277, 291-95 (E.D. Va. 2001). 34 Trigon Ins.
Co., 204 F.R.D. at 291-95; Indiana
Ins. Co. v. Hussey Seating Co., 176 F.R.D. 291,
292-93 (S.D.Ind.1997); but
see In re Jackson National Life Insurance Company Premium Litigation,
No. 96-MD-11222, 2000 WL 33654070 (W.D.
Mich. 02/08/00). 35 Crowley v. Chait,
322 F. Supp. 2d 530, 545 (D.N.J. 2004). 36 Fed. R. Civ. P. 26(a)(2)(B), Advisory Committee Notes–1993
Amendments. 37 Fed. R. Civ. P. 26(a)(2)(C). 38 Crowley, 322 F. Supp. 2d at 551. 39 Id. 40 Fed. R. Civ. P. 26(a)(2)(D). 41 Fed. R. Civ. P. 26(e)(1)(A), which applies to all
Rule 26(a) disclosures, including expert disclosures under Rule 26(a)(2).
42 Fed. R. Civ. P. 26(e)(2); see, e.g., EZ Dock, Inc. v. Schafer Sys., Inc., No. Civ.98-2364 (RHK/AJB),
2003 WL 1610781, at *10-11 (D. Minn. 03/08/03). 43 Fed. R. Civ. P. 26(b)(4)(B)(ii). 44 Joseph, Gregory P., “Engaging Experts,”
National Law Journal, 04/18/05
at 12. 45 Fed. R. Civ. P. 26(b)(4)(B). 46 Id. 47 In re Pioneer
Hi-Bred Intern., Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001). 48 Dyson Tech.,
241 F.R.D. at 251. 49 Trigon Ins,
204 F.R.D. at 284. 50 United States District Court District of Minnesota,
2005 Advisory Committee’s Note to LR 16.2 and Form 4 and 5 COURTLAND MERRILL is an attorney at the Minneapolis law firm of Anthony Ostlund Baer Louwagie & Ross P.A. He is a 2001 graduate of the University of North Dakota School of Law. His practice focuses on business litigation, including contract disputes, trade secret misappropriation, patent and copyright infringement, noncompete agreements, and employment disputes. |
