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A Rule 26 report disclosing proposed opinion testimony must meet specific and substantial criteria.  Fed. R. Civ. P. 26(a)(2)(b).  The report must contain, inter alia: (1) a complete statement of all opinions to be expressed and the basis or reasons therefor, and (2) the data or other information considered by the witness in forming the opinions.  Fed. R. Civ. P. 26(a)(2)(B), Tompkin v. Phillip Morris, 362 F.3d 882, 895 (2004), Brainard v. American Skandia Life Ins. Sopr., 2005 WL 3533545 (6th Cir. 2005).  The Advisory Committee Notes on Rule 26 elaborate on the report's requirements:

The report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness.  The report is to disclose the data and other information considered by the expert and any exhibits or charts and summarize or support the expert's opinions.  [Advisory Committee Notes, 146 F.R.D. at 634 (emphasis added).]

A Rule 26 report must contain more than conclusory assertions about ultimate issues.  Brainard, supra, citing Viterbo v. Dow Chem. Co., 826 F.2d 420 , 422 (5th Cir. 1987), quoting Hayes v. Douglas Dynamics, 8 F.3d 88, 92 (1st Cir. 1993).  See also, Sharpe v. United States, 230 F.R.D. 452 (E.D. Vir. 2000).

A Rule 26 report must set forth facts that "outline a line of reasoning arising from a logical foundation."  Brainard, supra, citing Am. Key. Corp. v. Cole Nat'l Corp., 762 F.2d 1569, 1579-1580 (11th Cir. 1985).  "An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process."  Brainard, supra, citing Mid-State Fertilizer Co. v. Exch. Nat'l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989), citing Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 829-32 (D.C.Cir. 1988)).

The fundamental purpose of the Rule 26 requirements is to enable an opposing party to prepare for trial.  This purpose substantially predates the 1993 revisions that created the "signed report" requirement.  The Advisory Committee Notes on the 1970 Amendments to Rule 26 emphasize that disclosure of expert testimony before trial is necessary if the opposing party is to have a reasonable opportunity to prepare effective cross examination:

Effective cross-examination of an expert witness requires advance preparation.  The lawyer even with the help of his own experts frequently can not anticipate the particular approach his adversary's expert will take or the data on which he will base his judgment on the stand…the only substitute for discovery of experts' valuation materials is lengthy and often fruitless—cross-examination during trial.

See Fed. R. Civ. P. 26 Advisory Committee Notes on 1970 Amendments; SeealsoKing v. Ford Motor Company, 209 F.3d 886 (6th Cir. 2000); Sommer v. Davis, 317 F.3d 686, 690 (6th Cir. 2003).

The exclusionary consequences of inadequate disclosure.

If a Rule 26 report is inadequate to inform the court and the opposing party of the witness's testimony—if, for example, it is conclusory and lacks foundational details—the witness's testimony is not admissible. This result is governed by the provisions of Rule 37(c)(1).

Under Rule 37, exclusion of inadequately disclosed testimony is both mandatory and automatic.  SeeTompkin v. Phillip Morris, 362 F.3d 882, 895 (2004); King v. Ford Motor Company, 209 F.3d 886 (6th Cir. 2000); Johnson v. Vanguard Manufacturing, Inc., 34 Fed. Appx. 858, 2002 U.S. App. LEXIS 8849 (3rd Cir. 2002).  See also WRIGHT, MILLER AND MARCUS, Federal Practice and Procedure: Civil 2d § 2031.1 (If the expert report does not set forth the substance of the direct examination, Rule 37(c)(1) provides for automatic exclusion of information that should have been revealed but was not).

An expert report that supplies only a bottom opinion is automatically excludable under Rule 37(c)(1).  Brainard, supra;  Sommer, supra.  Rule 37 says, "A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion, any witness or information not so disclosed."  Fed. R. Civ. P. 37.

The Advisory Committee Notes on the 1993 Amendments detail the reasoning behind Rule 37's mandatory sanctions.

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) and revised Rule 702 of the Federal Rules of Evidence provide 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. [Advisory Committee Notes, 146 F.R.D. at 634.]

Since 1993, when the current provisions of Rule 37 were adopted, federal courts throughout the country have enforced the exclusionary consequences of inadequate disclosure.  SeeSmith v. Baptist Healthcare System Inc., 23 Fed. Appx. 499 (6th Cir. 2001).  The primary reason that Rule 37 sanctions are self-executing and automatic is to ensure adequate Rule 26 disclosures.  Fed. R. Civ. P. 26 Advisory Committee Notes, 146 F.R.D. at 691.  See alsoSalgado v. General Motors Corp., 150 F.3d 735, 742 n.6 (7th Cir. 1998).  Rule 37(c)(1) puts teeth into Rule 26, and a district court acts well within its discretion by precluding witnesses from testifying unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.  WRIGHT, MILLER AND MARCUS, Federal Practice and Procedure: Civil 2d § 2289.1.

In National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976) (per curiam), the Supreme Court stressed that the policy underlying Rule 37 requires severe sanctions not only to penalize those who violate the discovery rules but also to deter those who might be tempted to do so in the future.  Id. at 643.  Accordingly, in Brainard v. American Skandia, supra, the court upheld exclusion of an expert's testimony because the report provided did not detail the facts upon which the witness relied in reaching his opinions, nor did it state the reasons and basis for the witness's opinions.  The report employed "broad and dramatic language without substance or analysis."  Id. at 7.

Similarly, in Smith v. Baptist Healthcare System, supra, the court found a proposed expert's report insufficient because it simply stated the witness's conclusion that the defendant deviated from the applicable standard of medical care and that the deviation caused the plaintiff's injuries.  The court excluded the report because it did not include publications authored by the proposed expert, the compensation paid to the expert, other cases in which the expert had testified and, "most significantly," did not include a complete statement of the basis and reasons for all opinions as required under Rule 26.  Id. at 501. 
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John L. Tate is a Member in the Louisville office where his national and regional litigation practice focuses on defending complex product liability lawsuits, but his trial experience includes admiralty claims, construction and insurance disputes, intellectual property, and a variety of personal injury matters.  He can be reached at jtate@stites.com.

This article was co-authored by Erin C. Dougherty, a former associate in the firm's Atlanta office.