Expert Opinions Not Disclosed in Report — Admitted Anyway

Rule No. 1: Know your Judge. Under Fed.R.Civ.P. 37(c)(1), if a party fails to disclose expert opinions or exhibits in his or her Rule 26(a)(2)(B) report, the undisclosed matter is automatically excluded at trial, unless there is "substantial justification" for the failure to disclose or the "failure is harmless." That rule of exclusion is often strictly enforced. See Joseph, Sanctions: The Federal Law of Litigation Abuse § 48(E)(1) (4th ed. 2008). For a more permissive view, see Schmude v. Tricam Indus., 2008 U.S. Dist. LEXIS 36688 (E.D. Wis. May 5, 2008), in which an expert was permitted to go distinctly beyond his report (evidently, even allowed to contradict it, at least implicitly):

[Defendant] Tricam's reading of the federal rules as requiring exclusion of any opinion that an expert offers in his testimony that was not disclosed in his Rule 26(a)(2) report is inconsistent with the general purpose of the rules "to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1. To disclose everything he intends to say in his testimony, an expert would need a complete list of the questions he will be asked and it would require a report as long as a transcript. Rule 26(a)(2)(B) requires that the expert set forth "the substance of the direct examination." Jenkins v. Bartlett, 487 F.3d 482, 487 (7th Cir. 2007) (quoting Fed. R. Civ. P. 26 advisory committee's note). By this standard, Johnson's report was sufficient.

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