Commercial Litigation and Arbitration

Experts: Failure to Act upon Receipt of Inadequate 26(a)(2) Disclosure = Unacceptable Gamesmanship

From Foreman v. Am. Road Lines, Inc., 2008 U.S. Dist. LEXIS 102278 (S.D. Ala. Dec. 16, 2008):

Unquestionably, it was incumbent on defendants to comply fully and timely with the disclosure requirements of Rule 26(a)(2), including specifically providing plaintiffs with a list of other cases in which Dr. Davis has testified in the last four years. Defendants did not timely furnish that list. However, Harris's Objection is not well taken for at least three reasons. First, notwithstanding defendants' omission in providing the requisite list of cases, Harris must share culpability for the nondisclosure. Indeed, upon receiving disclosures lacking the list of cases required by Rule 26(a)(2)(B)(v), Harris had a readily available remedy in the form of a request for supplementation pursuant to Rule 26(e). Had Harris made such a request, this issue almost certainly would have been resolved in a mutually satisfactory, painless, and efficient manner. But Harris never asked. Instead, Harris remained silent for months, then abruptly filed his Objection in hopes of parlaying an innocuous, easily-corrected omission into disallowance of Dr. Davis's testimony in its totality. Such gamesmanship flies in the face of the spirit of cooperation and fair play that animates Rule 26, and shifts the equities against plaintiff. Second, defendants' good faith is manifested in both Dr. Davis's unsolicited offer to generate a list of 10 cases off the top of his head during his deposition and in defendants' prompt submission of the list to Harris's attorney within days after being alerted to the omission by the filing of the Objection. These circumstances suggest that defendants' omission was the product of inadvertent oversight, not intentional suppression.

Third, Harris's contention that he was prejudiced by the nondisclosure is simply not credible. According to Harris, the result of defendants' omission is that "counsel for Plaintiff had no opportunity to examine Dr. Davis on prior testimony as a retained expert during the deposition, to the prejudice of this Plaintiff." (Doc. 86, at 3.) Again, any prejudice could have been eliminated had plaintiffs' counsel simply requested Rule 26(e) supplementation at any time prior to Dr. Davis's deposition. Moreover, plaintiff failed to mitigate any prejudice by waving off Dr. Davis's offer to generate a partial list from memory during the deposition itself. Had Harris's counsel assented, Dr. Davis would have generated that list, and counsel could have examined him to his heart's content about those other cases during the July 31 deposition. Inexplicably, Harris's counsel declined to proceed in this manner, which would have greatly ameliorated any harm wrought by the nondisclosure. Besides, defendants state (with no dissent from Harris) that Harris's counsel had previously had a case in which Dr. Davis furnished expert testimony. Surely, that experience could have formed the cornerstone of effective deposition examination of Dr. Davis concerning his expert witness history. Again, Harris's counsel chose not to follow such a path. Finally, it is uncontroverted that the list was furnished to Harris's counsel on October 10, 2008, some four months before the anticipated trial date in this action. *** In sum, then, any prejudice to Harris occasioned by the delayed compliance with Rule 26(a)(2)(B)(v) is in large part self-inflicted, the result of his own failure to take appropriate remedial steps prior to and during Dr. Davis's deposition to obtain the missing information. Any residual prejudice that may be ascribed to defendants is rendered negligible by Harris's counsel's previous litigation experience with Dr. Davis and defendants' disclosure of the relevant information some four months prior to trial, immediately upon being apprised of the omission.

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