Commercial Litigation and Arbitration

Testimony That Is Inadmissible under Rule 26(a)(2) May Be Received on Daubert Motion

From City of Owensboro v. Kentucky Utilities Co., 2008 U.S. Dist. LEXIS 79292 (W.D. Ky. Oct. 8, 2008):

[Plaintiff] OMU filed a Daubert motion to exclude the testimony of KU's damages expert, Mr. William Abington. In support of Plaintiffs' motion, OMU submitted the affidavit of Mark McClernon, OMU's expert rebuttal witness on KU's operation and maintenance counterclaim. ***

Pursuant to Fed. R. Civ. P. 37(c)(1), KU moves to strike the McClernon affidavit .... KU contends that pursuant to Fed. R. Civ. P. 26(a)(2)(B) and the Court's scheduling orders, the time for presenting expert opinions and rebuttal expert opinions has expired and, as a result, McClernon's affidavit is untimely and should be excluded. ***

The Court denies KU's motion to strike the affidavit of McClernon. McClernon's affidavit challenging the methodology utilized by Abington is submitted in support of OMU's Daubert motion. It will be helpful to the Court in determining whether Abington's calculation of damages utilizing EFOR data is reliable and admissible pursuant to Fed. R. Evid. 702 and Daubert. While KU is correct that the opinions expressed in McClernon's affidavit were not timely made pursuant to Fed. R. Civ. P. 26(a)(2)(B), the Court agrees with OMU that McClernon's affidavit may properly be considered by the Court in assessing OMU's Daubert motion. "Expert testimony that does not comply with [Rule 26] is therefore only excluded at trial and may be properly considered on a Daubert determination." Florists' Mutual Insurance Co. v. Lewis Taylor Farms, Inc., 2008 WL 875493, *17 n. 12 (M.D. Ga. March 27, 2008). See also UAW v. General Motors Corp., 235 F.R.D. 383, 388 (E.D. Mich. 2006)("Rule 26 is a trial-oriented discovery rule.")

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