Refusal to Strike Expert Report Despite Failure to Disclose Compensation at All and Prior Testimony Accurately in Initial, Unsigned Report — OK to Rely on Counsel for Expert’s Case List

From White v. City of Chicago, 2011 U.S. Dist. LEXIS 15722 (N.D. Ill. Feb. 16, 2011):

Plaintiff notes that when Defendants submitted the expert reports in this case, they did not disclose the compensation being paid to either doctor. In Plaintiff's view, "the prejudice [from this omission] would be incurable" because "it is simply too late and too close to the looming trial date to begin preparing for the taking of expert-witness depositions." *** Defendants concede that they failed to provide the required compensation statements, but insist that this "was merely an inadvertent oversight." *** Defendants represent that they have now supplied the missing data, and claim that Plaintiff was not prejudiced from the late disclosure since she did not need the compensation statements to effectively depose the expert witnesses regarding their medical opinions. Plaintiff disagrees, claiming in her reply brief that the real "thrust" of the argument is that "[a]n attorney should not be forced to pay an expert an undisclosed amount of money to take an expert's deposition just so he or she can learn the basis of the expert's opinions." ***

On the facts presented, the Court declines to strike either expert report for failure to timely produce compensation statements. The delay in receiving this information did not prevent Plaintiff from deposing the experts concerning their opinions. If Plaintiff desired to know in advance how much each expert would charge for time spent in the deposition, she easily could have asked Defendants to inquire about this. Plaintiff's assertion that she opted not to pursue depositions due to these unknown costs rings hollow. Plaintiff argues that Dr. Steinberg's report should nonetheless be stricken because the proffered list of cases where he testified as an expert is unreliable. The initial report dated December 23, 2010 disclosed two such cases, but was not signed. On December 28, 2010, defense counsel signed a supplemental list disclosing two additional cases. Finally, on January 27, 2011, Dr. Steinberg signed a list with a total of five cases. Plaintiff contends that she "cannot seriously rely on the accuracy" of this list, which justifies striking the entire report. The Court disagrees.

It is undisputed that Dr. Steinberg asked defense counsel to help him identify cases in which he has offered expert testimony. There was nothing improper about this request, as the 1993 Advisory Committee Notes explain that "Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports." Defense counsel was arguably remiss, both in compiling the case list and in failing to obtain Dr. Steinberg's signature until January 27, 2011. See Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 741 n.6 (7th Cir. 1998) (expert report "must be signed by the expert."). Regardless, Dr. Steinberg has now "affirm[ed] and sign[ed] the final list of cases disclosed," and there is no evidence that Defendants' actions resulted in any prejudice to Plaintiff. (Doc. 148, at 4; Doc. 148-1). See Jenkins v. Bartlett, 487 F.3d 482, 488 (7th Cir. 2007) (district court properly allowed expert testimony where reports consisted of a letter from counsel, unsigned by the witnesses, summarizing the expected testimony and the basis for that testimony, and the experts subsequently affirmed the contents of the letter by affidavit). Plaintiff's motion to strike Dr. Steinberg's report based on his expert testimony case list is denied.

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