Commercial Litigation and Arbitration

Expert Report and Evidence Checklist

From Brawhaw v. Mariner Health Care, Inc., 2008 U.S. Dist. LEXIS 37884 (N.D. Miss. May 8, 2008):

Fed. R. Civ. P. 26(a)(2)

1. Did the expert turn in an expert report?

2. Did the expert report contain:

(a) a complete statement of all opinions?

(b) the basis and reasons therefor?

(c) the data considered in forming the opinion?

(d) any exhibits to be used as a summary of opinions?

(e) the qualifications of the witness?

(f) publications authored by witness in the last 10 years?

(g) compensation

(h) other cases in which the expert has testified in the last 4 years?

3. Were the expert disclosures made at least 90 days before trial? Or in the case of rebuttal evidence, within 30 days before trial?

4. Were the opinions supplemented pursuant to FRCP 26(e)(1) (with respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty [to supplement] extends to both information contained in the report and to information provided through a deposition of the expert and any additions or other changes to this information shall be disclosed by the time the party's disclosures under Rule 26(a)(3) are due -- usually 30 days before trial)?

Fed. R. Evid. 702

5. Is the witness qualified by knowledge, skill, experience, training, or education?

6. Is the testimony based on sufficient facts?

7. Is the testimony the product of reliable methods?

8. Did the witness apply those methods to the facts reliably?

Daubert factors in determining Rule 702 requirements

9. Can or has the theory/technique been tested? Can the theory/technique be challenged or is it a subjective, conclusory approach?

10. Is the theory/technique subject to peer-review or publication?

11. Is there a known or potential rate of error of the theory/technique when applied?

12. Were standards and controls used?

Advisory Committee Notes to 2000 Amendment of FRE 702 factors

13. Did the theory arise from litigation or independent research?

14. Is there "too great an analytical gap between the data and the opinion proffered," that is, does the theory "fit" with the facts of the case? General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

15. Did the expert adequately consider alternative explanations?

16. Was the expert "as careful as he would have been in his regular professional work outside his paid litigation consulting"? Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997).

17. Is the expert's field of expertise known to reach reliable results for the type of opinion proffered?

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