Expert Evidence Admissible at Daubert Hearing Though Excluded from Trial

Under Federal Rules of Civil Procedure 26(a)(2)(B) and 37(c), the failure of a retained expert to submit the requisite, detailed report in a timely fashion presumptively leads to exclusion of the expert’s testimony at trial. But the strictures of Rule 26(a)(2)(B) do not apply in the pre-trial setting of the Daubert hearing. Among other things, that means that one can submit on a Daubert application testimony that is not admissible at trial because the prerequisites of Rule 26(a)(2)(B) have not been satisfied. In Gibbs Patrick Farms, Inc. v. Syngenta Seeds, Inc., 2008 U.S. Dist. LEXIS 23923 (M.D. Ga. March 26, 2008), the District Judge had excluded an expert’s testimony from trial because the report requirement had not been satisfied, but the judge considered the same evidence on a Daubert motion attacking another expert witness’s testimony. “The Court previously granted a Motion to Strike Dr. Jones's testimony due to its untimeliness under Rule 26. This rule, however, only addresses requirements for expert testimony for use at trial. Expert testimony that does not comply with this rule is therefore only excluded at trial and may be properly considered in a Daubert determination. See Fed. R. Civ. P. Rule 26.”

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