Untimely Expert Report Results In Expert Testimony Exclusion

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Fourth Circuit reviews whether the exclusion of medical expert testimony was appropriate after the plaintiff failed to provide a written expert report as required under Fed. R. Civ. P. 26(a)(2) and the district court's pretrial order; circuit notes the "broad discretion" that the district court has in imposing this sanction and affirms the exclusion of the expert testimony, in Wilkins v. Montgomery, _ F.3d _ (4th Cir. May 5, 2014) (No. 13-1579)

In federal criminal and civil cases, pre-trial expert disclosure is required. See Fed. R. Civ. P. 26(a)(2)(A), (B); Fed. R. Crim. P. 16(a)(1)(G), (b)(1)(C). For example, Fed. R. Civ. P. 26(a)(2) provides:

[A] party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. . . . Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report -- prepared and signed by the witness -- if the witness is one retained or specially employed to provide expert testimony in the case[.]

Fed. R. Civ. P. 26(a)(2)(A), (B). The rule adds that “[a] party must make these disclosures at the time and in the sequence the court orders.” Fed. R. Civ. P. 26(a)(2)(D). The failure to comply may result in sanctions including expert witness exclusion. The Fourth Circuit recently reviewed whether the exclusion of a party's expert was an appropriate sanction for violation of Fed. R. Civ. P. 26.

Trial Court Proceedings: Expert Witness Exclusion

In the case, plaintiff Wilkins filed an action against the director of a state hospital, the hospital and state after her son was strangled to death by another patient based on grounds of wrongful death based on gross negligence, grossly negligent supervision, and a civil rights claim for supervisory liability. The trial court established expert disclosure deadlines. The parties agreed to extend the deadline to November 21, 2012. On that date, the plaintiff provide the name of her expert, a curriculum vitae, but failed to provide a written report. Two weeks later, the plaintiff provided a one page summary which was described as a “preliminary report.” This disclosure stated:

Based on review of the above listed documents, it is my opinion to a reasonable degree of medical certainty that the care and treatment provided to Mr. Justin Lamar Davis fell substantially below an acceptable standard of care. Administration of the hospital failed to provide adequate services and supervision; and members of the treatment team failed to provide adequate monitoring, safety and treatment, amounting to deliberate indifference to the patient’s needs and premature death of Mr. Justin Davis.

The trial court excluded the expert testimony based on the failure to provide the required written report. The district court also denied a defense motion to alter or amend the order of exclusion. As the court explained:

First, the plaintiff was just way late in naming an expert in this case. And I know how hard it is to find experts for cases like this. But we have those deadlines so we can move in an orderly fashion. And the lateness with which the expert was identified would not allow that to happen. Second, the expert witness’ report is pretty much a brief of legal conclusions in the case, and I don’t think it is something that offers expert opinions on the issues on which an expert might be allowed to testify in this case.

Wilkins, _ F.3d at _. The district court ultimately granted summary judgment for the defendants. The plaintiff appealed and challenged the exclusion of the expert testimony.

Fourth Circuit Review: Sanction Was Appropriate

It was undisputed that the plaintiff failed to provide a timely written expert report. The central issue was whether exclusion of the expert testimony was an abuse of discretion. The Fourth Circuit found no error by the district court.

The circuit noted that Fed. R. Civ. P. 37(c)(1) provides that the failure to disclose expert information in a timely manner may result in disallowance of "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." Wilkins, _ F.3d at _ (citing Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278-79 (4th Cir. 2005) (quoting Southern States Rack & Fixture, Inc. v. Sherwin–Williams Co., 318 F.3d 592, 595 (4th Cir. 2003)) (alteration omitted); see also Southern States, 318 F.3d at 592 n.2 (“The Rule 37(c) advisory committee notes emphasize that the ‘automatic sanction’ of exclusion ‘provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence.’” (quoting Fed. R. Civ. P. 37(c) advisory committee note, 1993 Amendment) (emphasis supplied))).

The Fourth Circuit had previously identified certain factors to consider in determining whether exclusion is warranted:

[I]n exercising its broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless for purposes of a Rule 37(c)(1) exclusion analysis, a district court should be guided by the following factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party’s explanation for its failure to disclose the evidence.

Southern States, 318 F.3d at 596-97 (alterations omitted); id. at 596 (“It is the obligation of the party facing sanctions for belated disclosure to show that its failure to comply with Rule 37(c)(1) was either justified or harmless.”) (citation and quotation marks omitted)).

The circuit disagreed with the plaintiff that the district court was required to apply each factor before imposing the sanction. Instead, the factors were intended to guide the exercise of the court’s “broad discretion.” Nonetheless, the circuit noted that the record revealed that the district court “implicitly addressed” some of the factors in its ruling including the third and fourth factors. Finally, the circuit reviewed the record and concluded that the failure to disclose the expert report “was far from harmless.” As the circuit explained:

The disclosure was made after the agreed-upon expert disclosure date, after discovery was closed, after Appellee filed a motion for summary judgment, and on the very date set by the court for the filing of motions to exclude experts. It is hard to accept that these events would not serve as a surprise to Appellee, or that Appellee could easily cure such a surprise.

Wilkins, _ F.3d at _. There was no error by the district court's sanction of excluding the expert witness.

Conclusion

The Wilkins illustrates the consequences of failure to provide pretrial notice of expert testimony. The case also highlights relevant factors that may be considered. While exclusion as a sanction may be severe, it remains as an option for the court to consider.

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