Commercial Litigation and Arbitration

Experts — 26(e)(2) Supplementation of Report — Factors Guiding Substantially-Justified or Harmless Analysis (10th Circuit) — Inability to Catch Expert “Flat-Footed” at Deposition Is Not a Type of Prejudice that Justifies Exclusion under 37(c)(1)

Gillum v. United States, 309 F. App'x 267 (10th Cir. 2009):

In this Federal Tort Claims Act medical malpractice action, Kathleen Gillum, as the surviving spouse and executor of the estate of Donald Gillum, appeals the district court's exclusion of her expert witness's testimony and the resulting grant of summary judgment to the United States. We have jurisdiction under 28 U.S.C. § 1291. Because the district court abused its discretion in excluding the witness's testimony, we REVERSE and REMAND for further proceedings.


Federal Rule of Civil Procedure 26(a)(2) addresses expert witness discovery. A party must not only disclose the identity of its expert witness, Fed. R. Civ. P. 26(a)(2)(A), but also provide a written expert report that includes:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the data or other information 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 four years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B). Further, Rules 26(e)(1) and (2) require a party to supplement the expert's written report and deposition testimony where the prior information "is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Rule 37 addresses failures to comply with the discovery provisions: "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).

There is no question that the written report did not comply with the requirements of Rule 26(a)(2)(B). Thus, the issue before us is whether the district court erred in determining that the failure was not harmless. Our review is for abuse of discretion. Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999).  "Under this standard, we will not reverse unless the trial court has made an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." Id. at 992 (quotation omitted). "Nevertheless, we can hold the district court abused its discretion if the decision is based on an erroneous conclusion of law, or would result in fundamental unfairness in the trial of the case." Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002) (citation and quotations omitted). Several factors guide the Rule 37(c)(1) determination: "(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness." Woodworker's Supply, Inc., 170 F.3d at 993.

The district court found that the United States established prejudice from being unable to adequately prepare for Dr. Eckardt's deposition. The court also found that the prejudice could not be cured:

   The ability to cure the prejudice in the sense of ability to start from square one and confront the expert and plan for an effective deposition is obviously not there anymore. It's an unrecoverable situation. You only get one chance to confront that expert, if you will, flat-footed, with the benefit of the homework that you can do before you take that expert deposition, and that opportunity is now gone permanently in this case.

Aplt. App. at 425. For the third factor, addressing trial disruption, the court found that "[t]he schedule would be disrupted if we were to open up the case for new rounds of expert work, which might well result from wholesale introduction or admission of the matters which have been brought up now even after the deposition of Dr. Eckardt." Id. With regard to the fourth factor, the court found no bad faith or willfulness.

We conclude that the district court abused its discretion in analyzing the "cure" factor. Particularly, the court improperly focused on the fact that the inadequate report permanently deprived the United States of the opportunity to confront Dr. Eckardt "flat-footed" at his deposition. This is not the type of prejudice that justifies the exclusion of an expert's testimony. The parties to a litigation are not merely players in a game, trying to catch each other out. Rather, litigation should promote the   finding of the truth, and, wherever possible, the resolution of cases on their merits.

The hearing on the motion in limine was held at the end of January 2008, before the end of the discovery period. By that point, the United States knew the substance of Dr. Eckardt's expected testimony. See Jacobsen, 287 F.3d at 953 ("[T]o avoid prejudice [plaintiff] needed to know the substance of the experts' testimony."). Beyond the inadequate report, the United States had Dr. Eckardt's deposition and Mrs. Gillum's response to the motion in limine, which also discussed the reasons and bases for Dr. Eckardt's conclusion. We do not contest that the United States's attorney was hampered in preparing for Dr. Eckardt's deposition. Importantly, however, Mrs. Gillum had arranged for Dr. Eckardt to be available for a second deposition before the end of the discovery period. Thus, any prejudice accruing to the United States from an inadequate opportunity to prepare for the first deposition was capable of being cured. Cf. Woodworker's Supply, Inc., 170 F.3d at 993 (holding that the court gave the defendant "a significant opportunity to cure" by allowing counsel to cross-examine the witness outside of the  [**9] jury's presence). Further, to the extent that the second deposition was required because of the inadequate report, the court could order that Mrs. Gillum bear the costs of the second deposition.

We acknowledge the force of the district court's concerns that Mrs. Gillum's piecemeal disclosures ignored the policies behind Rule 26(a)(2). By no means do we condone the provision of inadequate expert reports and begrudging snippets of information, and we caution that parties who behave in this manner act to their peril. Under the circumstances of this case, however, the total exclusion of Dr. Eckardt's testimony, which necessarily resulted in the grant of summary judgment for the United States, was too extreme a sanction. See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) ("Only when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits is dismissal an appropriate sanction." (quotation omitted)).


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