Experts — Deposition Supplements Report

One of the plaintiffs’ experts in B.H. v. Gold Fields Mining Corp., 2007 U.S. Dist. LEXIS 4612 (N.D. Okla. Jan. 22, 2007), testified at his deposition to a theory not set forth in his Rule 26(a)(2)(B) report. The District Court concluded that the new theory was not trivial but constituted ‛a significant extension of [the] generic opinion“ set forth in the expert’s report. The Court held that the new opinion ‛should automatically be excluded under Fed.R.Civ.P. 37(c)(1).“ There is, however, a carve-out from the preclusion remedy in Rule 37(c)(1) if the omitted expert testimony has ‛otherwise been made known to the other parties during the discovery process or in writing,“ under Rule 26(e)(1). An expert deposition is a prime example of ‛ma[king] known“ the expert’s opinion ‛during the discovery process.“ Here, that appears to have happened. Therefore, exclusion under Rule 37(c)(1) appears less appropriate than the judge’s alternative holding that the new opinion did not satisfy Daubert/Fed.R.Evid. 702. B.H. is, though, a sharp reminder of the importance of completeness in preparing expert reports in federal court.

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