Opinion
8:98CV281
August 1999.
ORDER
This matter is before me pursuant to 28 U.S.C. § 636 and the referral of Judge Shanahan on defendant's "Motion to Exclude or Otherwise Limit the Testimony of Plaintiff's Expert Thomas F. Smegal, Jr." (#39). Having considered the evidence (#40) and briefs submitted by the parties, I find that the motion should be granted.
BACKGROUND
Under paragraph 10 of the current progression order, the parties were to designate expert witnesses by February 15, 1999 and plaintiff's expert reports were due May 7, 1999. On May 3, 1999, plaintiff served defendant with a copy of the expert witness report of Thomas F. Smegal, Jr. (see #17). Defendant contends that Mr. Smegal's testimony should be excluded or limited pursuant to Fed.R.Civ.P. 37 because his report does not comply with the requirements of Rule 26(a)(2). The report in question has been filed with defendant's evidence index at #40.
In its brief, plaintiff informs the court that defendant scheduled the deposition of Mr. Smegal for May 13, 1999, but cancelled the deposition without explanation.
LEGAL ANALYSIS
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure provides that expert reports must be prepared and signed by the expert witness and must contain the following:
The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and 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.
Under Rule 26(b)(4)(A), "If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided."
Failure to comply with Rule 26(a)(2) may preclude a party from using expert testimony at trial which was neither timely nor fully disclosed. See Fed.R.Civ.P. 37; Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir.), cert. denied, 516 U.S. 822 (1995); Bonin v. Chadron Comm. Hosp., 163 F.R.D. 565 (D.Neb. 1995). The issue presented here is whether the Smegal report substantially complies with the requirements of Rule 26(a)(2)(B).
The rationale behind Rule 26(a)(2)(B) was discussed at length inSullivan v. Glock, Inc., 175 F.R.D. 497 (D.Md. 1997). Regarding the written report required of retained experts, the court observed:
When one understands the purpose of the Rule 26(a)(2)(B) disclosures, it is easier to appreciate why complete disclosures are required. The purpose of these disclosures is to provide "information regarding expert testimony sufficiently in advance of trial that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses." Commentary to Rule 26(a), 146 F.R.D. 401, 633 (1993) (emphasis added). Cross examination of an expert generally involves three components. During the court's preliminary assessment of whether the expert will be permitted to offer opinion testimony, pursuant to Fed.R.Evid. 104(a), the focus is whether the expert meets the requirements of evidence rule 702 to give such testimony. If so qualified, then, pursuant to Fed.R.Evid. 611(b), the focus shifts to the opinions expressed and the support therefor, as well as matters affecting the credibility of the expert. When one keeps these three functions of cross examination of experts in mind it is easier to appreciate why all of the information required by the Rule 26(a)(2)(B) disclosure is important. All too often lawyers focus almost exclusively on disclosing the expert's opinions, the supporting facts, data, and bases, and neglect their additional obligation to disclose the witness's qualifications, publications, compensation, and listing of prior testimony. This information, however, bears directly on whether the expert is qualified under Fed.R.Evid. 702, and commonly provides a factual basis to attack the credibility of the expert. Thus, a Rule 26(a)(2)(B) disclosure which does not completely address each of these elements may be lacking in a material respect.Id. at 503 n. 11. In light of these considerations, the Sullivan court concluded, "As a rule of thumb, if the failure to comply with the required disclosure involves a material aspect of the expert's testimony, and if the opposing party can show prejudice in connection with the lack of disclosure, then the opinion of the expert should be excluded, in whole or in part, at trial." Id.
The Eighth Circuit appears to have adopted this position inSylla-Sawdon v. Uniroyal Goodrich Tire Co., a products liability suit concerning an automobile tire. In Sylla-Sawdon, the plaintiff designated as an expert witness H. Boulter Kelsey, Jr., a mechanical engineer. Kelsey supplied his curriculum vitae and submitted a short affidavit in response to the district court's scheduling order. Kelsey's affidavit and curriculum vitae did not, however, divulge any direct professional experience in tire manufacture or tire failure analysis. Although the defendant notified plaintiff that it did not believe Kelsey's summary affidavit complied with the scheduling order, Kelsey did not supplement the affidavit. Defendant elected to depose Kelsey, who testified that he did not consider himself an expert in rubber chemistry, tire design, or the tire manufacturing process. Kelsey testified that he did not have any formal training in tire failure analysis and that his employment history bears no relationship to the knowledge he relied upon to reach his opinion in this case. Instead, Kelsey explained that his knowledge of tire failures arises from his many years of experience as a competitive race car driver, combined with his mechanical engineering background. Id. at 282.
Defendant filed a motion in limine to exclude or limit Kelsey's testimony at trial. After reading Kelsey's deposition, the district court sustained the motion in limine in part and overruled it in part, holding that Kelsey could testify, but only as to the limited content of his affidavit and "nothing else."
The district court observed that Kelsey had "taken rather lightly" the court's Scheduling Order and remarked that Kelsey was a "very weak expert." In response to Uniroyal's request for clarification of the ruling, the court stated:
[T]hat doesn't mean to say that I am going to qualify him as an expert. You can still object when [plaintiff's counsel] goes through his testimony whether he can qualify him in front of the jury as an expert. I am not ruling on that, I am ruling on what he can testify to, if he gets qualified. You have got to qualify him as an expert.Id. at 282-83. At trial, the district court refused to qualify Kelsey as an expert and Kelsey was not permitted to give his opinion that the tire failed because of a manufacturing defect. In denying Sylla-Sawdon's motion for a new trial on this issue, the district court ruled that plaintiff had "flagrantly disregarded" the court's scheduling order. Sylla-Sawdon argued on appeal that the district court's trial rulings constituted an abuse of discretion. The Eighth Circuit flatly rejected this argument:
Sylla-Sawdon urges us to reverse and remand this case for a new trial so that another jury may have the benefit of Kelsey's opinion in deciding this case. Her request essentially asks us to ignore her expert's cursory response to the district court's Scheduling Order, and this we decline to do. Sylla-Sawdon failed to qualify Kelsey as an expert because he did not abide by the Scheduling Order and Rule 26(a)(2)(B), although we speculate that plaintiff may have had difficulty qualifying Kelsey as an expert in tire failure analysis even if his pretrial submission had complied with the Scheduling Order. . . .
Federal Rules of Civil Procedure 16(f) and 37(b)(2)(B) "authorize district courts to prohibit the admission of evidence proffered by the disobedient party.". . . . "The power of the trial court to exclude exhibits and witnesses not disclosed in compliance with its discovery and pretrial orders is essential" to judicial management of the case. . . . We do not agree with Sylla-Sawdon that Kelsey's affidavit complied with the district court's Scheduling Order. The affidavit lacked the specificity required by the Scheduling Order and thus failed to give Uniroyal advance notice of Kelsey's qualifications and the substance of his testimony so that Uniroyal could prepare to meet the testimony at trial. . . .Id. at 283-84 (citations omitted). Nor was Kelsey's failure to provide a complete report excused because the defendant elected to depose Kelsey. Id. Although the Sylla-Sawdon decision was premised upon the plaintiff's failure to abide by the district court's scheduling order, the court's discussion of the 1993 revisions to Rule 26 is illustrative:
The commentary to the amended Rule echoes the district court's stated rationale for requiring expert reports: the elimination of unfair surprise to the opposing party and the conservation of resources:
The information disclosed under the former rule in answering interrogatories about the "substance" of expert testimony was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in preparing for a deposition of the witness. Revised Rule 37(c)(1) provides an incentive for full disclosure; namely, that a party will not ordinarily be permitted to use on direct examination any expert testimony not so disclosed. . . .
. . . .
. . . Since depositions of experts required to prepare a written report may be taken only after the report has been served, the length of the deposition of such experts should be reduced, and in many cases the report may eliminate the need for a deposition.
Fed.R.Civ.P. 26(a)(2)(B) advisory committee's note. The "sketchy and vague" nature of Kelsey's affidavit forced Uniroyal to depose Kelsey to determine his qualifications and the basis for his opinion. Consequently, the necessity of the deposition frustrated the purposes of the district court's Scheduling Order and today would likewise frustrate the purposes of Rule 26(a)(2)(B).
Id. at 284. Accordingly, the Eighth Circuit held that the district court did not abuse its discretion in limiting Kelsey's testimony to the content of his affidavit as a sanction for his failure to comply with the district court's Scheduling Order. Id. Because the affidavit and its attached curriculum vitae did not disclose any academic or practical experience in tire manufacture or tire failure analysis, the district court properly sustained Uniroyal's objections as Sylla-Sawdon attempted to elicit such evidence for the first time at trial. Id.
I have reviewed Mr. Smegal's report (#40) and find that the report is deficient. As defendant notes in its brief, the Smegal report merely "alleges in a terse summary format that certain of Trail King's side dumping trailers infringe claims 1, 2, 3 and 5 of [the '214 patent] owned by Circle R, Inc." The report is indeed presented in a "simplistic claim chart format" and lacks any clear statement of reasoning from which its few conclusions are drawn. Mr. Smegal's opinions, stated in their entirety, are:
Opinion. It is my opinion that the side dump trailers sold by Trail King literally infringe claims 1, 2, 3 and 5 of the '214 patent. [followed by recitation of claims 1, 2, 3 and 5 described in the '214 patent]
* * * *
Opinion. It is my opinion that the side dump trailers sold by Trail King infringe claims 1, 2, 3 and 5 of the '214 patent. [followed by recitation of claims 1, 2, 3 and 5 described in the '214 patent]
(#40, Smegal report at pp. 2 6). Under Sylla-Sawdon, discussed above, defendant was not obliged to depose Mr. Smegal in the absence of a report that contained all the information required by Rule 26(a)(2).
Because plaintiff has failed to provide a conforming expert report, the court must now decide whether Mr. Smegal's testimony should be prohibited, or whether a different sanction should be imposed. As discussed in footnote 2, above, filing the instant motion in lieu of a motion to compel was an acceptable tactical decision made by defense counsel. Extending the case progression order is not a practical solution at this point. I conclude that, under the circumstances, plaintiff should be prohibited from calling Mr. Smegal as an expert witness.
For these reasons,
IT IS ORDERED that defendant's "Motion to Exclude or Otherwise Limit the Testimony of Plaintiff's Expert Thomas F. Smegal, Jr." (#39) is granted. Pursuant to Fed.R.Civ.P. 37, plaintiff is hereby prohibited from calling Thomas F. Smegal, Jr. as an expert witness.
Pursuant to NELR 72.3 any appeal of this order shall be filed with the Clerk of the Court within ten (10) days after being served with a copy of this order. Failure to timely appeal may constitute a waiver of any such objection. The brief in support of any appeal shall be delivered to the Hon. Thomas M. Shanahan at the time of filing such appeal. Failure to submit a brief in support of any appeal may be deemed an abandonment of the appeal.