Expert Report Even if Sanctionable Is Not Violative of Rule 26(g)

Plaintiff Johnson in Johnson v. Bon-Ton Dep’t Stores, Inc., 2008 U.S. App. LEXIS 10920 (2d Cir. May 21, 2008) appealed from an order denying her motion to strike Defendant Bon-Ton's defenses as a sanction pursuant to Federal Rule of Civil Procedure 26(g) for submitting an allegedly false expert report. Reliance on Rule 26(g) was important to the plaintiff because sanctions are mandatory under that rule, as opposed to being discretionary. Because the opinion in unpublished, it is short and does not describe the manner in which the expert report was allegedly false. The important holding is that:

[T]he mandatory sanction provision of Rule 26(g)(3) does not apply to expert disclosures under Rule 26(a)(2). See Fed. R. Civ. P. 26(g)(1) [which makes it clear that Rule 26(g) applies only to disclosure and discovery requests, responses and objections that are signed by a lawyer or pro se litigant]. If sanctions are not mandatory, a district court's decision to impose or decline to impose sanctions is reviewed for abuse of discretion. See Int'l Telepassport Corp. v. USFI, Inc., 89 F.3d 82, 86 (2d Cir. 1996); see also In re Goldstein, 430 F.3d 106, 111 (2d Cir. 2005).

Held, the lower court did not abuse its discretion “in not precluding Bon-Ton from asserting its defenses and in determining that cross-examination would be a more appropriate method for discrediting the proffered expert witness than a sanction precluding defenses.” There is nothing wrong with this analysis. Query why Rule 37(c)(1) did not apply (like a function of the nature of the “fals[ity]” of the expert report).

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