Last week, we looked at a key aspect of the expert witness process: when to submit a supplemental report. But let’s be honest: sometimes it simply is not possible or realistic to submit a supplemental report in a timely way. What then?
The answer is, as is often the case with the law: it depends. The Federal Rules of Civil Procedure have a variety of opinions on the topic. Rule 37(c)(1) emphasizes that the purpose of expert disclosure rules is “to avoid surprise or trial by ambush,” and continues that “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 at a motion, at a hearing, or at a trial” unless the party shows that “the failure was substantially justified or is harmless.” This sounds like a hard line, but often is more flexible than it appears.
The last part is where the subjectivity comes in. How do the courts define “substantially justified” or “harmless”? The Northern District of New York clarified that “substantial justification means justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request,” and that harmlessness means “an absence of prejudice.” But the language definitely leaves room for interpretation.
An expert may, for instance, provide additional details not included in his original report as long as the testimony is consistent with the report’s opinions. The courts have been clear that they aren’t looking for an expert to regurgitate the report, but elaborate and elucidate its findings. Experts are therefore safe as long as they color in the lines of their original report, with no new opinions or methodologies on display that would “ambush” the opposing party at court.
Rebuttal testimony is typically safe from sanction as well. According to the follow-up to the Law360 article we mentioned last week, “because the opposing party has proffered the very evidence which the expert is rebutting, ‘there can be no serious argument that [the opposing party] was somehow unfairly surprised’ or prejudiced.”
What if expert testimony is not covered in the original report, not supplemented, and found to be either unjustified or at least not harmless? Happily, preclusion of testimony is typically a last resort. Rule 37(c)(1) provides a variety of sanctions “in addition to or instead of” preclusion of testimony, including expansion of the discovery period, monetary fees, adverse jury instructions, and more. In most cases, the expert is not deliberately scuttling the process, and the court legitimately wants to hear as much relevant evidence as possible.
Of course, preclusion is always a possibility. When counsel shows no respect for the expert witness process, for example, the courts have little patience. The Law360 article serves up this example: “In Mobileye Inc. v. Picitup Corp., the Southern District of New York Court struck a supplemental expert declaration submitted in connection with a motion for summary judgment where the court had already stricken a previous supplemental report by the same expert; the declaration included opinions from the stricken report; and the supplemental report contradicted prior deposition testimony and prior expert reports by the same expert.” I can’t say I blame them.
When it comes to including testimony outside of the scope of your original expert witness report, it is always safest to submit a supplemental report. If that’s not feasible, however, your best bet is to move forward in good faith. The courts enjoy broad discretion around if and how to sanction rogue expert testimony. If you can prove that your additions are “substantially justified” and/or “harmless,” you may be in luck.