Federal Rule 26 Bans Expert Witnesses Testimony

Six Expert Witnesses Banned from Testifying

Eugene Peterson
September 22, 2011

I was very concerned and shocked today, when I read that on August 23, 2011 the Eleventh Circuit Court of Appeals affirmed an earlier decision striking six experts from testifying at trial. After all, my livelihood is based upon the fact that I write expert reports and testify in court.

The case that prompted this action was Walter International Products Inc. v. Salinas, 2011 WL 3667597 *5-*7 (11th Cir. August 23, 2011).  The expert witnesses were barred because none of them submitted a report as required by Federal Rule of Civil Procedure 26.

The court stated," Each witness must provide a written report containing a complete statement of all opinions to be expressed and the basis and reasons therefore, as well as information about recent cases in which he or she offered testimony. Any party that without substantial justification fails to disclose this information is not permitted to use the witness as evidence at trial unless such failure is harmless."

Failure to comply with the disclosures required under Federal Rule of Civil Procedure 26 may cause testimony from me and other expert witness to be barred from testifying at trial. I certainly don’t want that to happen, so I have made a brief study of Federal Rule of Civil Procedure 26.  Here is what I have found.

Rule 26 requires all expert witnesses retained or employee to provide expert testimony in the case to provide an appropriate written report. It also requires that the report be served on “other parties” and not just the adversary. Unless the trial court orders otherwise, the expert report must be provided 90 days before the trial or, for experts intended solely to contradict or rebut other experts, within 30 days after receiving materials to be rebutted.

From my study of rule 26 the expert report must contain six elements:

  1. a complete statement of all opinions to be expressed and the basis and reasons for them;
  2. the data or other information considered by the witness in forming his opinions;
  3. any exhibits that will be used to summarize or support them;
  4. the witnesses qualifications, including a list of all publications authored in the previous 10 years;
  5. a list of all of the cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and
  6. a statement of the compensation to be paid for the study and testimony in the case.

Lest the rule be hard and firm, there are exceptions. My focus is not on the exceptions, but on a better understanding of what is needed to comply with rule 26.

State courts and their jurisdictions may have other requirements.

After my personal review of rule 26, I see that I need to make a few changes to my future reports. 

After all, I don't want to ever be disqualified from testifying in court.

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