Supplementation of Expert Report to Add Study from Unretained Expert Barred
From State Farm Fire & Cas. Co. v. Jarden Corp., 2010 U.S. Dist. LEXIS 60327 (S.D. Ind. June 16, 2010):
Plaintiff moves first to exclude any reference to a study conducted by Scott Barnhill in which Mr. Barnhill recorded the results of his testing of the characteristics of heaters similar to the one at issue here as well as the potential effects fire might have on such a heater. The sole reference to this study in the evidentiary record appears as an attachment to the supplemental report of Defendants' expert causation witness, Daniel L. Churchward. [Footnote 2. 2 Indeed, the only difference between Churchward's original report and his supplemental report was the attachment of this reference.] Defendants have not independently offered Barnhill's study for admission into the record, nor have they designated him as a potential witness in this matter.
According to Plaintiff, the Barnhill study is not admissible because it is irrelevant and because it constitutes an impermissible attempt by Defendants to sneak additional expert testimony into the record through the back door, that is, without designating the evidence or ever identifying Barnhill as a witness, as required. At his deposition, Churchward stated that he did not attach the Barnhill study to his report himself and, further, that he was unaware of the study until Defendants' attorneys informed him of it. *** Moreover, Churchward stated that the Barnhill study was "moot" and, in at least one instance, referred to it as "not relevant." *** In another instance, however, Churchward stated, "[I]f my understanding of [Plaintiff's expert's] opinion is incorrect, then Mr. Barnhill's report is relevant." ***
*** Were the Barnhill study introduced properly as a separately designated expert report or other evidence, it would likely meet this low threshold for admissibility [i.e., that of Rule 402]. However, Defendants have not proffered this evidence independent of Churchward's report; indeed, Churchward never even knew this report existed. Thus, Plaintiff's concern that Defendants are attempting to introduce new expert testimony "through the back door" appears to be well-taken.
Courts must be vigilant in policing parties' attempts to "sandbag" opponents with inappropriately filed expert evidence. See In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154, 159 (S.D. Ind. 2009). "The purpose of the [expert] report is to '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 note). Thus, admitting this study would enable Defendants unfairly to alter Churchward's expert report in a way that he never intended simply by eliciting amended testimony from him at trial based on the Barnhill study. Clearly, this would prejudice Plaintiff. Thus, because Defendants, through the inclusion of this study, attempt to circumvent the evidence rules relating to expert disclosure, and because Churchward clearly did not rely upon the study in forming his expert opinions, and further because Defendants have not offered the Barnhill study as independently admissible evidence, Plaintiff's motion to exclude this evidence must and shall be granted.
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