LITIGATION NEWS. Lanham Act Awards l Frivolous Pleadings. What Do You Do When Your Fact Witness Is Also an Expert? ALSO INSIDE

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1 Dirt:27g:: SECTION OF LITIGATION VOLUME 40 NUMBER 2 WINTER 2015 LITIGATION NEWS What Do You Do When Your Fact Witness Is Also an Expert? ALSO INSIDE Lanham Act Awards l Frivolous Pleadings

2 IS YOUR FACT WITNESS A AT TO DO W \ YOU R FACT WIT\I BY SARA E. COSTELLO, LITIGATION NEWS ASSOCIATE EDITOR

3 II litigators know that Federal Rule of Civil Procedure 26 requires the disclosure of the expert witnesses they intend to present at trial. But who is an expert, and how much must be disclosed? If you make the wrong choice, the penalties for your client can be steep. Indeed, the importance of complying with Rule 26s requirements for expert disclosures was hammered home in Burreson v. BASF Corp., when the U.S. District Court for the Eastern District of California excluded some of the plaintiffs witnesses for failure to provide the requisite expert disclosures under Rule 26(a)(2). RULE 26 AND EXPERT DISCLOSURES For any expert witness who is "retained or specially employed to provide expert testimony," a written expert report must also be provided as part of the Rule 26 disclosures. The same requirement applies to any party's employee whose duties "regularly involve giving expert testimony!' The expert report must comply with Rule 26(a)(2)(B) by including the witness's opinions; facts and data considered by the expert; any exhibits that will be used; and information about the expert's qualifications, participation in other cases, and compensation. But not all witnesses who provide expert testimony fit neatly into the category described in Rule 26(a)(2)(B). In some situations, a fact witness who has not been retained or specifically employed by a party to provide testimony may still provide some expert testimony if proper disclosures have been made. In Kobe v. Haley, the U.S. District Court for the District of South Carolina explained that this type of non-retained witness is sometimes referred to as "a hybrid expert" (i.e., a hybrid of a fact and expert witness) and is not required to submit an expert report pursuant to Rule 26(a)(2)(B). Certain disclosures are required for hybrid experts, however, under Rule 26(a)(2)(C), pursuant to Rule 26's amendment in SUMMARY DISCLOSURE AMENDMENT TO RULE 26 In 2010, significant changes were made to Rule 26, including the addition of a provision requiring parties to provide summary disclosures for non-retained or hybrid experts. Specifically, Rule 26(a)(2)(C) states that the summary disclosures should include (1) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705, and (2) a summary of the facts and opinions to which the witness is expected to testify. According to the Advisory Committee's notes to Rule 26, this amendment was aimed at resolving a "tension" that led courts to require expert reports "even from witnesses exempted from the report requirement." The Advisory Committee described the summary disclosure required by the newly adopted Rule 26(a)(2)(C) as "considerably less extensive" than an expert report. It also offered examples of witnesses who might provide both factual and expert testimony and would be considered non-retained or hybrid experts. Such experts could include "physicians or other health care professionals and employees of a party who do not regularly provide expert testimony." The summary disclosure requirement added to Rule 26 "is a very good amendment and helps prevent surprise and undue advantage to one side," believes Douglas L. McCoy, Mobile, AL, cochair of the ABA Section of Litigation's Trial Practice Committee. It fits in well with "the purpose of the rule, which is to promote transparency and give fair notice" to parties, agrees Beatrice O'Donnell, Philadelphia, PA, cochair of the Section of Litigation's Woman Advocate Committee. Prior to the amendment, there was "not a bright-line test" for when expert reports were required, O'Donnell notes. PLAINTIFF NAMES SELF AS AN EXPERT WITNESS In Burreson, a blueberry farmer sued a fungicide manufacturer for lower crop yields allegedly caused by the fungicide. The plaintiff identified five non-retained expert witnesses, including himself, in his Rule 26 disclosures. The plaintiff provided a brief summary of the subject matter about which the non-retained experts would testify, for example, the proper care and cultivation of blueberry bushes, the plaintiff's method of blueberry farming, and what the reasonable expected production of blueberries from the plaintiff's fields should have been. The plaintiff's Rule 26 disclosures specified that the experts had not prepared written reports and would not be paid for their testimony, but it did not specify what the experts' opinions were. Because the plaintiff failed to disclose the opinions of the five experts, the defendant moved to preclude their testimony pursuant to Rule 37. Rule 37(c)(1) provides that if a party does not provide sufficient Rule 26 disclosures, "the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." In response, the plaintiff contended that because his experts would not receive any compensation, they were not "retained" and, thus, reports were not required. EXPERTS CAN BE RETAINED EVEN IF THEY ARE NOT PAID The magistrate rejected the plaintiff's argument, finding that the Rule 26(a)(2)(B) written report requirement for "retained" experts does not depend on whether the witness is paid. "Expert witnesses, like attorneys, are 'retained' when their services are secured, even when those services are provided on a pro bono basis," the magistrate noted. The key question, the magistrate explained, is whether the expert developed the opinions for the litigation. In this case, because the witnesses' "opinions were solicited for purposes of litigation and not for an independent purpose," the magistrate concluded that the experts were required to provide full reports as required by Rule 26(a)(2)(B). Further, the magistrate held that even if the plaintiff had only to provide summary disclosures for his experts under Rule 26(a)(2)(C), the plaintiff's disclosures were still inadequate. The plaintiff failed to satisfy this lesser burden because he only disclosed the subject matter of the proposed testimony but did not include a summary of the experts' opinions. The magistrate also rejected the plaintiff's argument that the defendant should have served discovery on the experts to gain information regarding their planned opinion testimony. The magistrate emphasized that the burden of disclosure falls on the proponent of the expert testimony. That disclosure should inform opposing parties of the adverse opinions being offered and allow them to gauge whether it is necessary to depose the expert and whether they will need a responding expert, the magistrate noted. ISTOCK PHOTO/KELLY BOOK WINTER 2015 VOL. 40 NO

4 "The magistrate got it right," O'Donnell believes. The magistrate "tried to give the plaintiff the benefit of the doubt," but his expert disclosures were simply "too generic to inform his opponent," she explains. FAILURE TO PROVIDE DISCLOSURES LEADS TO EXCLUDED OPINIONS Ultimately, the magistrate held that the plaintiff did not show that his failure to comply with Rule 26 for two of his designated non-retained experts "was substantially justified or harmless." Because the plaintiff's disclosures were inadequate for those two experts, the magistrate imposed sanctions pursuant to Rule 37 by barring them from providing expert opinions. Regarding the plaintiff's other three experts, the magistrate noted that the defendant deposed them and found that, to the extent that they had been deposed regarding their "putative expert opinions, the non-disclosure is harmless." Accordingly, the magistrate imposed a lesser sanction regarding these three experts and limited their opinion testimony to that elicited during the depositions. Finally, the magistrate's ruling made clear that all of the experts could testify as fact witnesses. The sanction in Burreson "was probably reasonable," McCoy says. "But as a practical matter, the impact of the ruling was limited," he adds, "because much of what the plaintiff described as expert testimony was really just factual testimony." RULE 26 SUMMARY DISCLOSURES FOR TREATING PHYSICIANS The U.S. District Court for the District of Kansas noted in Hayes v. American Credit Acceptance, LLC, that "there is scant case law outlining what constitutes a sufficient disclosure under Rule 26(a)(2)(C)." It appears, however, that the magistrate's analysis of the summary disclosure requirements in Burreson is in line with other courts' conclusions, particularly as they apply to treating physicians and their records. For example, in Kondragunta v. Ace Doran Hauling & Rigging Co., the U.S. District Court for the Northern District of Georgia rejected a Rule 26(a)(2)(C) disclosure for a treating physician, finding that the "reader of plaintiff's disclosure has no idea what opinion the doctor will offer or on what facts the doctor will base that opinion." The district court also found that although the plaintiff provided his medical records to the defendants, this failed to satisfy the summary disclosure requirement. Citing Burreson, the U.S. District Court for the Northern District of Oklahoma in McArthur v. Giller also disapproved of expert disclosures that failed to include "any information that could possibly be cast" as MINMININEWIMENWEEMENIMINFP RULE 26. DUTY TO DISCLOSE; GENERAL PROVISIONS GOVERNING DISCOVERY (a) Required Disclosures. the summary of facts and opinions called for by Rule 26(a)(2)(C). Moreover, simply "dumping" medical records on defense counsel does not satisfy Rule 26(a)(2)(C)'s summary disclosure requirement, according to the U.S. District Court for the District of Nevada in Carillo v. B&J Andrews Enterprises, LLC. District court rulings, however, have not been consistent. In Perdomo v. United States, for example, the U.S. District Court for the Eastern District of Louisiana held that Rule 26(a)(2)(C)'s disclosure requirement "pertains solely to the opinions [of treating physicians] not contained in the medical records." DISCLOSURE DEFECTS MAY BE CURED OR MAY BE HARMLESS In Burreson, the magistrate did not allow the plaintiff an opportunity to amend or cure his deficient expert disclosures. Because "the plaintiff did not appear at the hearing and the case was pretty far along," the sanction imposed by the magistrate was warranted, O'Donnell says. Still, when a party fails to comply with the summary disclosure requirement in Rule 26(a)(2)(C), exclusion of expert witnesses is not automatic. The Kondragunta court explained that most courts permit the party to file a compliant report and then allow the opposing party to depose the expert. It then instructed the plaintiff to "redraft (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report prepared and signed by the witness if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify. 12 I ABA SECTION OF LITIGATION

5 its existing disclosure, expanding on, and providing more specific information, in its summary of the facts and opinions" to which the plaintiff's non-retained experts were expected to testify. Similarly, in Kobe, the district court declined to exclude the plaintiff's hybrid witnesses even though the plaintiff failed to satisfy the summary disclosure requirement. The court explained that these factors should be taken into consideration to determine whether the nondisclosure is substantially justified or harmless: (1) [T]he surprise to the party against whom the witness was to have testified; (2) the ability of the party to cure that surprise; (3) the extent to which allowing the testimony would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence. The Kobe court concluded that there was sufficient time for the plaintiff to cure his failure to provide the required expert disclosures without any harm to the defendant. Even if insufficient disclosures cannot be cured, the failure may still be harmless. In Faile v. Dillard's, Inc., the U.S. District Court for the Northern District of Florida found, as in Burreson, that the plaintiff's failure to meet the disclosure requirement was harmless error because the defendant "was able to fully depose the treating physicians about their facts and opinions." ADJUSTING TO THE AMENDMENT OF RULE 26(A)(2) Following the 2010 amendment to Rule 26, attorneys must be "more mindful of whether their experts qualify as retained or non-retained," McCoy notes. Further, they should keep in mind the magistrate's ruling in Burreson. Attorneys cannot assume an expert witness will be deemed "non-retained" just because he or she "is not getting paid," McCoy cautions. Initially, the distinction that the magistrate draws in Burreson between retained and non-retained experts "does not sound very complicated," McCoy contends. However, it can be difficult to determine whether a witness's opinion was solicited for the purposes of litigation or for an independent purpose. For example in D.G. v. Henry, the U.S. District Court for the Northern District of Oklahoma considered how to categorize an employee who performed additional work outside her normal duties so that she could provide expert testimony. In that case, the district court concluded that the employee qualified as a retained expert and, thus, would be required to provide an expert report under Rule 26(a)(2)(B). Employees can fall into "a gray area," O'Donnell acknowledges, adding that attorneys may face resistance from clients regarding providing expert reports from employees. COMPLYING WITH RULE 26'S EXPERT DISCLOSURE REQUIREMENTS Attorneys "need to be in touch with their witnesses at the earliest stage possible," McCoy says, so that they can determine what type of expert testimony they might want to present. This will help attorneys gauge whether it is necessary to provide written expert reports as required by Rule 26(a)(2)(B) or summary disclosures as required by Rule 26(a)(2)(C), he suggests. "I err on the side of caution," O'Donnell notes. "If there is any debate in my mind about whether an expert report is required, I will provide a report." When analyzing whether to provide expert reports or summary disclosures, O'Donnell recommends that attorneys return to "the touchstone of Rule 26, which is transparency." "You are not supposed to sandbag your opponent," O'Donnell says. If attorneys decide that their fact witnesses may also qualify as non-retained experts, it is critical that they pay attention to Rule 26's summary disclosure requirements. "Attorneys who are trying to satisfy Rule 26(a)(2)(C) need to ask themselves three questions," McCoy recommends: Have I described the subject matter of the testimony? Have I provided a summary of the facts? Have I provided a summary of the opinions that the witness is expected to express? IMPORTANCE OF SCRUTINIZING THE OTHER SIDE It is equally important that attorneys "pay attention to opposing parties' expert disclosures and give them a hard look," McCoy counsels. "If you do not study the opponent's disclosures promptly and carefully, you could miss your opportunity to raise an appropriate challenge," he warns. In addition, "if you go to a deposition and you realize that a fact witness is turning into an expert witness, it may raise a red flag," O'Donnell says. At that point, she recommends, "you may want to revisit the disclosures" to make sure that they are sufficient. RESOURCES Burreson v. BASF Corp., 2014 U.S. Dist. LEXIS (E.D. Cal. Aug. 22, 2014). Carillo v. B&J Andrews Enters, LLC, 2013 U.S. Dist. LEXIS (D. Nev. Jan. 29, 2013). N D.G. v. Henry, 2011 U.S. Dist. LEXIS (N.D. Okla. July 13, 2011). 111 Faile v. Dillard's, Inc., No. 5:11-cv-41-RS-CJK (N.D. Fla. Nov. 4, 2011). Hayes v. Am. Credit Acceptance, LLC, 2014 U.S. Dist. LEXIS (D. Kan. Aug. 12, 2014). Kobe v. Haley, 2013 U.S. Dist. LEXIS (D.S.C. Aug. 12, 2013). Kondragunta v. Ace Doran Hauling & Rigging Co., 2013 U.S. Dist. LEXIS (N.D. Ga. Mar. 20, 2013). McArthur v. Giller, 2014 U.S. Dist. LEXIS (N.D. Okla. Sept. 5, 2014). Perdomo v. United States, 2012 U.S. Dist. LEXIS (E.D. La. June 11, 2012! Louis E. Kempinsky & John. C. Keith, "The Rule 26 Amendments: One Year Later," ABA Section of Litigation, Commercial & Business Litigation (Apr. 30, 2012), available at one-year. Mara Leventhal, "Retained and Non-Retained Experts: Cases After 2010 Amendments to Rule 26(a)(2)," New York Law Journal (Dec. 27, 2012). Andrea Mahady Price & Kristin L. Beckman, "Hybrid Witnesses and Federal Rule of Civil Procedure 26," ABA Section of Litigation, Mass Torts Litigation (Nov. 13, 2012), available at Jason J. Rawnsley, "The 2010 Amendments to the Expert Discovery Provisions of Rule 26 of the Federal Rules of Civil Procedure: A Brief Reminder," ABA Section of Litigation 2012 Section Annual Conference, available at bit.ly/2010amendments. AMERICAN BAR ASSOCIATION WINTER 2015 VOL. 40 NO