Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose the opinions of experts who may present evidence at trial. If the disclosures are inadequate, Rule 37(c) requires exclusion of the opinions “unless the failure was substantially justified or is harmless.” This almost automatic exclusionary rule can pose issues when deciding whether to depose an opposing expert. Although “Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them with later deposition testimony,” Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008), some courts nevertheless may consider an inadequate disclosure to be “harmless” once the expert’s opinions have been fully explored at deposition. On the other hand, although “[c]ourts have uniformly rejected the [idea] that the failure to depose an expert affects the right to object to the expert’s testimony,” Hinton v. Outboard Marine Corp., 828 F. Supp. 2d 366, 370 (D. Me. 2011) (collecting cases), a party may need to depose an opposing expert in order to properly set up a challenge to the expert’s opinions for purposes of Federal Rule of Evidence 702 or trial if the court deems the expert’s disclosure adequate. This issue becomes particularly acute as applied to nonretained experts, who need not provide a written report under Rule 26. A recent opinion from the Northern District of Indiana aptly illustrates the quandary.
In Macchia v. Landline Trans, LLC, No. 2:21-CV-398, 2024 WL 4751091 (N.D. Ind. Nov. 12, 2024), the plaintiff alleged that he was injured in a motor vehicle accident and proffered three of his treating physicians as experts to opine on his injuries and causation. The defendants filed a three-pronged motion to exclude the experts. Notably, the defendants elected not to take the depositions of any of the three physicians. Indeed, the court’s opinion repeatedly observed how the lack of deposition testimony made it “a bit of a challenge” to summarize the background facts and adjudicate the motion.
Up first was a dispute about the status of each of the three experts. The plaintiff characterized each expert as a nonretained physician and provided only the lesser disclosures required under Rule 26(a)(2)(C) along with brief, written responses from the physicians to questions posed by the plaintiff’s attorneys. The defendants argued that all three physicians should be considered retained under Rule 26 because their causation opinions were not formed during their treatment of the plaintiff. Thus, because the experts’ brief written responses failed to satisfy the more rigorous retained expert standard under Rule 26(a)(2)(B), their testimony should be excluded. The court observed that, although the Seventh Circuit held in early 2010 (Myers v. Natl’ R.R. Passenger Corp., 619 F.3d 729, 734–35 (7th Cir. 2010)) that a treating physician who offers a causation opinion that was not formed in the course of providing treatment is a retained expert for Rule 26(a)(2) purposes, Rule 26 was amended later that same year to add Rule 26(a)(2)(C). (We discussed the Eleventh Circuit’s recent analysis of this issue here.) While acknowledging that courts have split on whether Myers remains good law following the 2010 amendments to Rule 26, the Macchia court did not need to resolve that issue. Instead, it examined the medical records from each physician — while repeatedly noting the lack of deposition testimony to clarify their thoughts — and concluded that they reached their causation determinations during treatment. Thus, the physicians did not need to meet Rule 26(a)(2)(B)’s strictures.
Next, the defendants argued that two of the expert disclosures failed to comply even with the lesser requirements under Rule 26(a)(2)(C), which requires a party to summarize the facts and opinions to which a nonretained expert is expected to testify. The court found that the disclosures satisfied that standard, but just barely. Again, the court commented on the choice not to depose the experts, noting that the defendants could have fleshed out any threadbare disclosures had they chosen to depose the experts.
Finally, the defendants challenged the foundation of one expert’s testimony under Rule 702. The court considered the expert’s CV, treatment report, review of the plaintiff’s medical records, and the limited scope of her opinion. Ultimately, the court concluded that the testimony was sufficiently supported and rejected the Rule 702 challenge along with the other arguments for excluding the experts.
The defendants in Macchia faced a difficult situation. When faced with expert disclosures that fall well short of the Rule 26(a)(2)(B) standard — and arguably short even of the Rule 26(a)(2)(C) standard — one might prefer to forego a deposition to save costs and avoid developing the opposing party’s evidence for them. But a deposition might strengthen a challenge to the expert under Rule 702, and it could be critical for trial preparation if motions to exclude are denied. Indeed, as illustrated in Macchia, a deposition might even help clarify which disclosure standard the expert is required to meet. Practitioners should carefully consider the full range of risks and benefits before choosing whether to depose an inadequately disclosed opposing expert.
The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.
