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Expert Testimony Disclosure

Three Cases For The Experts: Disclosure, Deadlines and "Fit" Testimony

Dennis Wall
September 19, 2011

Rules requiring disclosure of Expert Testimony are important.  Compliance with them can be crucial.  In Federal Court, Federal Rule of Civil Procedure 26(a) provides for certain requirements and deadlines governing disclosure concerning Expert Witnesses and their testimony expected to be offered at Trial.  Failure to comply with Rule 26(a) can result in the imposition of a number of sanctions under Federal Rule 37.  If the failure to comply is "neither substantially justified nor harmless," the party offering the Expert Testimony may be barred from using them in the Federal Court action "as an expert witness to supply evidence on a motion, at a hearing, or at trial," as happened to the Plaintiff Condominium Association in the case of La Gorce Palace Condominium Ass'n v. QBE Insurance Corp., 2011 WL 1522566 *4 (S.D. Fla. February 28, 2011)(authorized subscription required).

Even where disclosure is arguably "late," it may nonetheless be substantially justified or the Court's resolution of the opposing party's challenge to the Expert disclosure may render the "lateness" of the disclosure harmless, as in Perez v. First American Title Insurance Co., 2011 WL 3861677 *1 (D. Ariz. September 1, 2011)(authorized password required to access Westlaw).  In the First American Title Insurance case, a District Judge held that a supplemental Expert report was "substantially justified" because the Court itself had previously held that electronic discovery would be allowed after the original deadlines had passed for disclosure concerning Experts, including deadlines for Rebuttal Reports.

When timely or substantially justified, or harmless, even allowable Expert Testimony depends on the issue for which the Expert Testimony is offered.  Further, Expert 'qualifications' do not require an academic degree; experience is often the appropriate answer as to whether the proffered Expert Testimony is a good fit for the issue on hand, as  a third U.S. District Judge ruled in Metlife Auto & Home v. Broan-Nutone, LLC, 2011 WL 3736550 *3-*4 (N.D.N.Y. August 24, 2011)(authorized Westlaw password required).

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