Commercial Litigation and Arbitration

Expert Witnesses — Late Designation — Preclusion or Admission?

As Judge Patrick Higginbotham writes for the Court in Betzel v. State Farm Lloyd's, 480 F.3d 704 (5th Cir. 2007), the Fifth Circuit applies a four-factor test in reviewing, for abuse of discretion, a District Court’s decision to exclude expert testimony as a sanction for belated designation of expert witnesses in violation of a pretrial order: ‛(1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.“ The Betzel Court reversed the exclusion of the plaintiffs’ tardily-designated experts, and its application of these factors is enlightening.

With respect to item (1) (explanation for the failure to timely designate), the Court stressed the importance of that an explanation be provided. ‛We take seriously this lack of explanation, having held, for example, that exclusion of expert witnesses ‘is particularly appropriate’ where the party has ‘failed to provide an adequate explanation for their failure to identify their expert within the designated timetable.’“ This weighs in favor of exclusion of the testimony.

As for item (2) (importance of the excluded testimony), the fact that a party faces summary judgment in the absence of the excluded expert testimony renders it ‛essential“ and weighs against exclusion.

With respect to item (3) (prejudice to the opponent), the court analyzed the summary judgment papers that, according to the defendant, reflected its reliance on the plaintiff’s lack of expert testimony and found this fact to be ‛only trivially relied on,“ in four sentences out of a 38-page motion. The absence of prejudice weighed against exclusion.

Finally, and possibly most telling, in addressing item (4), the Betzel Court stressed the curative powers of a continuance:

Because [defendant] State Farm would have incurred no unwarranted additional expenses in filing a second motion for summary judgment and because the imposed sanction was dispositive of the case, we must find an abuse of discretion. We do not suggest that the able district judge abused his discretion in imposing a sanction. Rather, it is that the extreme end of the sanction spectrum was imposed against the lowest end of the prejudice spectrum. Any number of less-dispositive sanctions, in conjunction with a continuance, were at hand, such as prohibiting [plaintiff] Betzel from filing any expert supplements, denying Betzel any costs and attorneys' fees associated with the deposition of the late-designated experts, denying Betzel 21.55 penalties or interest for the delay associated with the continuance, or even requiring Betzel to reimburse State Farm's costs and attorneys' fees associated with the additional expert discovery.

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