Commercial Litigation and Arbitration

Experts — Rebuttal Report Timely If Submitted within Period Specified by Rule 26(a)(2)(C)(ii) and Pretrial Order Is Silent as to Rebuttal Reports — Caselaw Split

From Hernandez v. Butterball, LLC, 2010 U.S. Dist. LEXIS 50246 (E.D.N.C. May 21, 2010):

The issue boils down to whether Rule 26(a)(2)(C)(ii), which allows disclosure of evidence contradicting or rebutting another party's expert testimony within thirty days after the other party's disclosure, applies here as a default rule where the scheduling order specifies dates for expert disclosure, but is silent on the issue of expert rebuttal testimony. The Rule states in relevant part:

Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order,the disclosures must be made: *** (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party . . . , within 30 days after the other party's disclosure.

Fed. R. Civ. P. 26(a)(2)(C)(ii) (emphasis added). Here, there is a court order generally scheduling deadlines, but it does not specifically address a rebuttal expert disclosure deadline. The court cannot locate any controlling precedent on this issue. Rather, there is caselaw on point supporting both Plaintiffs' and Butterball's positions.

After examining various authorities, the court finds discussion in a recent case from the Southern District of New York, SEC v. Badian, 2009 U.S. Dist. LEXIS 120951, 2009 WL 5178537 (S.D.N.Y. 2009), to be instructive. The Badian court discussed this exact issue at length, and examined numerous cases across jurisdictions supporting both sides of this issue. In Badian, the court allowed the party to utilize Rule 26(a)(2)(C)(ii)'s deadline to file a rebuttal expert report when the scheduling order was silent on such a deadline. However, it was important to the Badian court that the plaintiff had moved for an extension of Rule 26(a)(2)(C)(ii)'s thirty-day deadline before the deadline would have expired. Also significant to the court's reasoning was that the scheduling order there set an "expert discovery" deadline that was 105 days after the last expert disclosure deadline; implicitly, then, the Badian scheduling order allowed time for expert depositions and, arguably, rebuttal expert disclosure within the thirty days allowed by Rule 26(a)(2)(C)(ii). Badian, 2009 U.S. Dist. LEXIS 120951, 2009 WL at *5-6.

Other cases cited by the Badian court also support the proposition that Rule 26(a)(2)(C)(ii)'s deadline may apply as a default deadline where the scheduling order does not specify a rebuttal expert deadline. See Syringe Development Partners L.L.C. v. New Medical Technology, Inc., 2001 U.S. Dist. LEXIS 2843, 2001 WL 403232 (S.D. Ind. 2001), *36 n. 7 (allowing Rule 26(a)(2)(C)(ii)'s application where case management plan had expert disclosure deadline but did not set deadlines for rebuttal witness disclosure); City of Gary v. Shafer, 2009 U.S. Dist. LEXIS 41004, 2009 WL 1370997, *2-3 (N.D. Ind. 2009) (same); Aircraft Gear Corp. v. Marsh, 2004 U.S. Dist. LEXIS 15897, 2004 WL 1899982, *5 (N.D. Ill. 2004) (same); see also Mayou v. Ferguson, 2008 DSD 8, 544 F. Supp. 2d 899, 901 (D.S.D. 2008) ("I disagree with any decision to the effect that, where the stipulation and the scheduling order are silent, such [silence] serves to prohibit any designation of a rebuttal expert being made by the plaintiff. I interpret Rule 26 to allow [default application of Rule 26(a)(2)(C)(ii)'s deadline]."); cf. Wegener v. Johnson, 527 F.3d 687, 691 (8th Cir. 2008); Lindner v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 636 (D. Haw. 2008); Johnson v. Big Lots Stores, Inc., 253 F.R.D. 381, 383- 85 (E.D. La. 2008).

While the court has considered the caselaw which supports Butterball's proposition that Rule 26(a)(2)(C)(ii) does not allow expert rebuttal designation where the scheduling order is silent on the topic, the court finds that such cases are either distinguishable or not compelling. For example, in Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306 (M.D.N.C. 2002), the district court found that Rule 26(a)(2)(C)(ii)'s deadline did not apply because the scheduling order already expressly stated a deadline for expert rebuttal disclosures, and plaintiff's designation was well past the order's deadline. However, even after this finding, the court allowed the plaintiff to present the one expert report that would have been timely had Rule 26(a)(2)(C)(ii) been applicable (although it did impose attorney's fees and defendant's deposition costs on plaintiff as a sanction for violating the scheduling order). *** Thus, Akeva does not stand for a hard and fast rule excluding rebuttal expert designation where the scheduling order is silent.

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