Is an Expert Who Agrees to Testify for No Compensation but with Expense Reimbursement “Specially Employed” within 26(a)(2)(B) Requiring a Written Report?

Acree v. Watson Pharm., Inc., 2012 U.S. Dist. LEXIS 101697 (N.D. Ill. July 20, 2012):

Plaintiff has moved to strike two witnesses on the ground that defendants disclosed them too late and insufficiently. The witnesses are two scientists who reside in Germany, a pathologist (Dr. Sven Anders) and a toxicologist (Dr. Hilke Andresen), who authored an article published in mid-March 2012 discussing fentanyl blood concentrations. Defendants say they want to call the two scientists to testify regarding the study discussed in their article: why it was done, how it was designed, how the subjects were chosen, sampling techniques, data collection and analysis, study results, and the conclusions reached. See Pl.'s Mot., Ex. 1 at 5 (defendants' supplemental Rule 26(a)(2) disclosures).***

[D]efendants have advised the Court that Drs. Anders and Andresen will travel voluntarily -- though at defendants' expense -- to appear at trial, but they will not travel voluntarily to appear for a pretrial deposition. Rather, defendants have argued that if plaintiff wants to depose the two scientists, she will have to attempt to compel their attendance by some form of legal process. Because the scientists are beyond the Court's subpoena power and out of the country, plaintiff is basically out of luck in this regard. There is no basis to believe, and defendants do not contend (let alone attempt to show) that there is any way to compel the two German-resident scientists to appear in Germany or anywhere else for a pretrial deposition at any time reasonably prior to the scheduled trial date. ***

There is a legitimate question regarding whether the two scientists are the types of expert witnesses who are required by Rule 26(a)(2)(B) to provide a written report. This depends in this case on whether they were retained or specially employed to provide their expert testimony. Defendants say they are not paying the experts beyond their travel, lodging, and subsistence expenses and that as a result, they have not "retained" the experts. That may be so, but it does not exclude the possibility that they may be considered to have "specially employed" the two experts to testify. Defendants say they simply called and asked the two scientists to come testify voluntarily and they agreed to do so, but they have provided no documentation or verified information about their discussions or dealings with the scientists. The circumstances are unusual enough to warrant some skepticism regarding defendants' contention that the two scientists do not come within the scope of Rule 26(a)(2)(B). That said, the Court is not in a position to make a definitive determination on this point, one way or the other, on the current record.

This, however, does not save defendants. One way or another, the two scientists are experts (as defendants themselves said), and the disclosures were late. Defendants did not have authority from the Court or the plaintiff's agreement to make late disclosures.

Because defendants failed to make timely disclosure, they may not use the witnesses unless their failure was substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1); see also, e.g., Tribble v. Evangelides, 670 F.3d 753, 758 (7th Cir. 2012). It was neither.