Opinion
Civil No. EP-03-CA-189(KC)
November 12, 2003
ORDER
On October 28, 2003, this Court denied defendant's Motion to Strike the Expert Reports of Edward Reese and Stephen Stafford without prejudice to refiling for failure to comply with this Court's Order governing motion practice. On further review, defendant did in fact conform to the prescribed motion procedure. The order denying defendant's motion (Doc. No. 16) is therefore vacated.
Defendant moves to strike the expert reports of Dr. Edward Reese and Dr. Stephen Stafford for failure to comply with the requirements of Federal Rule of Civil Procedure 26 and for failure to meet the admissibility standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
As the present motion involves non-compliance with expert disclosure requirements, i.e., the absence of proposed expert findings or opinion, this Court does not reach the issue of whether Daubert would otherwise preclude the expert testimony were such testimony offered at trial. Without the appropriate disclosure, this Court lacks any basis on which to assess the reliability of the proposed expert testimony.
The requirements for expert disclosure are as follows: (1) a written report, (2) containing "a complete statement of all opinions to be expressed and the basis and reasons therefor," (3) "the data or other information considered by the witness in forming the opinions,"(4) "exhibits to be used as a summary of or support for the opinions," (5) "the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years," (6) "compensation to be paid for the study and testimony," and (7) "a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years." FED. R. CIV. P. 26(a)(2)(B); see also 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2031.1 (3d ed. 1998) (describing requirements for mandatory disclosure of expert witnesses). A party failing to make the above mandatory disclosure will not be permitted to use such evidence at trial absent substantial justification for the failure. FED. R. CIV. P. 37(c).
The expert disclosure for Dr. Reese is limited to a recitation of defendant's requests for production and responses to the requests, signed by Dr. Reese. The expert disclosure for Dr. Stafford includes his affidavit attesting to the accuracy of his curriculum vitae and indicating that he had performed a metallurgical examination of the device involved in the present product liability claim and stating findings as to his metallurgical evaluation of the device.
There can be little doubt that Dr. Reese's report does not approach the level of detail required by Rule 26(a). There is no curriculum vitae provided whatsoever, and there is further no indication as to the scope of his proposed testimony. Dr. Stafford's report provides more detail than Dr. Reese's report, but provides no detail as to testing methods employed in arriving at the stated findings, exhibits to be used in support of the findings or cases in which he has appeared as an expert. It is further without question that the date for mandatory disclosure has passed without compliance and without substantial justification for non-compliance. Given the failure of plaintiff to respond to the present motion, there is no indication that plaintiff's circumstances weigh against excluding the subject testimony. See Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996) (providing four-part test for reviewing exclusion of expert witnesses).
Defendant's Motion to Strike the Expert Reports of Edward Reese and Stephen Stafford (Doc. No. 15) is granted.
SO ORDERED.