2010 Expert Discovery Amendments Narrow the Definition of a “Retained or Specially Employed” Expert without Redefining It — New Disclosures for Unretained Experts Encourage Literal Interpretation

Downey v. Bob’s Discount Furniture Holdings, Inc., 633 F.3d 1 (1st Cir. 2011):

In 2005, the plaintiffs, Yvette Downey and her daughter, Ashley Celester, were living in Randolph, Massachusetts. Early that year they began to experience skin irritation, which they originally attributed to allergies or infections. In the crepuscular hours of July 24, 2005, they awoke to discover an outbreak of insects. The parties agree in their briefs that some of the bugs were covering Ashley's body.

Yvette Downey immediately called Allegiance Pest Control and spoke to the service manager, Edward Gordinier, a licensed and experienced exterminator. Gordinier inspected the plaintiffs' home that day. His inspection revealed "bedbugs harboring in the bed frame," which had been purchased from the defendant, Bob's Discount Furniture Holdings, Inc., as part of a children's bedroom set. ***

A. Expert Testimony.

The trial court's exclusion of Gordinier's opinion testimony rested on its conclusion that the plaintiffs' failure during discovery to produce a written report from Gordinier transgressed the commands of Rule 26(a)(2)(B). The district court's action amounts to preclusion as a sanction for a discovery violation and, thus, is reviewed for abuse of discretion. Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003). ***

As the text of Rule 26(a)(2)(B) makes plain, the rule covers two types of experts: (i) "retained or specially employed" experts who meet certain criteria and (ii) employees of a party who meet certain criteria. Fed. R. Civ. P. 26(a)(2)(B). Because there is no suggestion that Gordinier was regularly employed by the plaintiffs, the lens of our inquiry narrows to whether he was "retained or specially employed."

The circumstances suggest that he was not. For one thing, there is no evidence that Gordinier was a person who held himself out for hire as a purveyor of expert testimony. For another thing, there is no evidence that he was charging a fee for his testimony.

In order to give the phrase "retained or specially employed" any real meaning, a court must acknowledge the difference between a percipient witness who happens to be an expert and an expert who without prior knowledge of the facts giving rise to litigation is recruited to provide expert opinion testimony. ***

Like a treating physician — and unlike a prototypical expert witness — Gordinier was not retained or specially employed for the purpose of offering expert opinion testimony. Rather, he was "an actor with regard to the occurrences from which the tapestry of the lawsuit was woven." Id. Put another way, his opinion testimony arises not from his enlistment as an expert but, rather, from his ground-level involvement in the events giving rise to the litigation. Thus, he falls outside the compass of Rule 26(a)(2)(B). See Fielden v. CSX Transp., Inc., 482 F.3d 866, 869 (6th Cir. 2007).

In an effort to blunt the force of this reasoning, the defendant contends that Gordinier should be considered "retained" because his inspection reports do not indicate that he deduced the cause of the infestation in the process of inspecting and treating the plaintiffs' premises. See, e.g., Meyers v. Nat'l R.R. Pass. Corp., 619 F.3d 729, 734 (7th Cir. 2010). This contention misperceives both the law and the facts.

Interpreting the words "retained or specially employed" in a common-sense manner, consistent with their plain meaning, we conclude that as long as an expert was not retained or specially employed in connection with the litigation, and his opinion about causation is premised on personal knowledge and observations made in the course of treatment, no report is required under the terms of Rule 26(a)(2)(B). See id. at 734-35; Garcia v. City of Springfield Police Dep't, 230 F.R.D. 247, 249 (D. Mass. 2005); Sprague v. Liberty Mut. Ins. Co., 177 F.R.D. 78, 81 (D.N.H. 1998). This sensible interpretation is also consistent with the unique role that an expert who is actually involved in the events giving rise to the litigation plays in the development of the factual underpinnings of a case. Finally, this interpretation recognizes that the source, purpose, and timing of such an opinion differs materially from the architecture of an opinion given by an expert who is "retained or specially employed" for litigation purposes. Consequently, where, as here, the expert is part of the ongoing sequence of events and arrives at his causation opinion during treatment, his opinion testimony is not that of a retained or specially employed expert. See, e.g., In re Aredia & Zometa Prods. Liab. Litig., F. Supp. 2d , , No. 3:06-MD-1760, 2010 U.S. Dist. LEXIS 129231, 2010 WL 4970910, at *2 (M.D. Tenn. Dec. 7, 2010); Salas v. United States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995). If, however, the expert comes to the case as a stranger and draws the opinion from facts supplied by others, in preparation for trial, he reasonably can be viewed as retained [**14] or specially employed for that purpose, within the purview of Rule 26(a)(2)(B). See Stanley Martin Cos. v. Univ'l Forest Prods. Shoffner LLC, 396 F. Supp. 2d 606, 619 n.8 (D. Md. 2005); Garcia, 230 F.R.D. at 249.

Footnote 3. The defendant suggests that this rule encompasses a requirement that the causation testimony must have been necessary to the treatment. Although a few district courts have held that a report is required for causation testimony that was not necessary to the treatment, see, e.g., Starling v. Union Pac. R.R. Co., 203 F.R.D. 468, 479 (D. Kan. 2001), most courts do not draw such a distinction, see, e.g., Garcia, 230 F.R.D. at 249; Sullivan v. Glock, Inc., 175 F.R.D. 497, 501 (D. Md. 1997); Hall v. Sykes, 164 F.R.D. 46, 48-49 (E.D. Va. 1995). We accept this majority view and adhere to the distinction explicitly drawn by Rule 26 - a distinction that is based on the role the witness has played in the case. See Brandt Distrib. Co. v. Fed. Ins. Co., 247 F.3d 822, 825-26 (8th Cir. 2001).

Footnote 4. Although we have reviewed this claim of error in accordance with the version of Rule 26(a) that was in effect at the time of trial, a recent amendment to the rule, effective December 1, 2010, reinforces our interpretation. In an effort to "resolve[] a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement," Fed. R. Civ. P. 26 advisory committee's note, the rule was amended to emphasize that a Rule 26(a)(2)(B) "report is required only from an expert described in (a)(2)(B)." Id. (emphasis supplied). Citing the example of a treating physician, the advisory committee explained that a "witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705." Id.

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