Expert Reports — Distinguishing 26(a)(2)(B) Retained Experts from 26(a)(2)(C) Hybrid Witnesses — What “Facts” and “Opinions” Must Be Disclosed under 26(a)(2)(C)

Meredith v. Int’l Marine Underwriters, 2012 U.S. Dist. LEXIS 100972 (D. Md. July 20, 2012):

Federal Rule of Civil Procedure 26(a)(2)(A) requires litigants to disclose "the identity of any witness [they] may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed.R.Civ.P. 26. Rule 26(a)(2)(B) further requires litigants to produce written reports for any witness who is "retained or specially employed to provide expert testimony in the case" or "whose duties as the party's employee regularly involve giving expert testimony." Id. Those reports must include:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the [*11] compensation to be paid for the study and testimony in the case.

Fed.R.Civ.P. 26(a)(2)(B).

Rule 26(a)(2)(C), while less onerous, requires that the disclosure of witnesses who do not need to provide a written report must nevertheless disclose: "(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify." Fed.R.Civ.P. 26(a)(2)(C). ****

Under Rule 26(a)(2)(B), a witness is required to provide an expert report if the witness is "retained or specially employed to provide expert testimony in the case" or has "duties as the party's employee [that] regularly involve giving expert testimony." A witness must submit a report regarding any opinions formed specifically in anticipation of litigation, or otherwise outside the normal course of a duty. See Sullivan v. Glock, Inc., 175 F.R.D. 497, 500 (D.Md. 1997); Nat'l R.R. Passenger Corp. v. Ry. Express, LLC, 268 F.R.D. 211, 216 (D.Md. 2010) (citing Desrosiers v. Giddings & Lewis Mach. Tools, LLC, No. WDQ-07-2253, 2009 WL 4406149 at *5 (D.Md. Nov. 25, 2009), rev'd in part on other grounds, Desrosiers v. Mag Indus. Automation Sys., LLC, No. WDQ-07-2253, 2010 WL 213286 (D.Md. May 25, 2010))). The Court refers to this class of witness as retained experts. Conversely, to the extent that a witness' opinion is based on facts learned or observations made "in the normal course of duty," the witness is a hybrid and need not submit a report.... A party seeking to avoid producing an expert report bears the burden of demonstrating that the witness is a hybrid. Lee v. Valdez, No. 3:07-CV-1298-D, 2008 WL 4287730 (N.D.Tex. Sept. 18, 2008); Cinergy Commc'ns v. SBC Commc'ns, No. 05-2401-KHV-DJW, 2006 WL 3192544, at *3 (D.Kan. Nov. 2, 2006); see Tokai Corp. v. Easton Enterprises, 632 F.3d 1358 (Fed.Cir. 2011) (upholding district court's exclusion of testimony where proffering party failed to produce evidence that witness was a hybrid).***

Even assuming, arguendo, that Mr. Meredith reasonably believed Mr. Smith to be a hybrid witness, subject only to the Rule 26(a)(2)(C) requirements, his disclosures were nevertheless inadequate and violated this Court's Order. Specifically, the Court instructed that:

Plaintiff shall make the disclosures required by Rule 26(a)(2)(C) for expert witnesses not filing reports, which are "the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705" and "a summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C) (West 2011). . . . Importantly, the Court observes, in no uncertain terms, that compliance with this rule will require a more detailed disclosure than Plaintiff has thus far provided. In particular, the Court understands the rule's reference to "facts" to include those facts upon which the witness' opinions are based, and "opinions" to include a precise description of the opinion, rather than vague generalizations.

(Ct. Mem. 12-13). In an attempt to further clarify Mr. Meredith's burden, the Court, by way of example, explained that "Plaintiff's description of Captains Harmon's and Philip's opinion that the accident was the result of "third causes" would not be sufficient, absent a detailed statement of exactly what those causes are or might be." (Id. at n.2). Notwithstanding this additional instruction, however, Mr. Meredith's supplemental disclosure [*23] merely reiterated, verbatim, much of the same conclusory and vague generalizations. (See Pl.'s Updated Disclosure 3) (stating that Captains Harmon and Philip, as well as Charles Smith, would testify that the sinking was the result of "third causes"). In addition, Mr. Meredith continued his violation of this Court's Order when, despite an express order to do so, he failed to provide a description of how and when Mr. Smith came to form the proffered opinion.

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