Failure to comply with the rule's requirement results in sanction: the offender is not allowed to introduce the expert's testimony as "evidence on a motion, at a hearing, or at a trial." This penalty has been said to be "automatic and mandatory" unless the offending party can establish that its violation of the rule was "either justified or harmless."1 Clearly, compliance with the rule on expert reports seems pivotal if one wants to use expert testimony. But, that being said, how much detail will be sufficient to provide "a complete statement" of all opinions and the basis and reasons for each? How developed must the expert report actually be? Rule 26's advisory committee's note says that expert reports must be "detailed and complete" and not "sketchy and vague." Some courts say that the purpose of the report is "to set forth the substance of the direct examination."2 One has said that "A complete report must include the substance of the testimony which an expert is expected to give on direct examination together with the reasons therefore . . . . [It] must include 'how' and 'why' the expert reached a particular result, and not merely the expert's conclusory opinions."3 Let's say the expert's report is deficient, perhaps saturated with a lot of conclusory opinions, but that the expert is offered for a deposition relatively soon after the expert report is obtained. Assume further that the adverse attorney has an opportunity during such deposition to probe the expert and get much more detail than the report provides. Has such an informative deposition eclipsed the deficiency of the report so that the penalty for the insufficiency is erased? Has the adversary receiving the report really been prejudiced, given the opportunity to get from a deposition even more information than an adequate report would give? A recent decision by the U.S. Court of Appeals for the Seventh Circuit, Ciomber v. Cooperative Plus Inc.,4 is informative about the tensions inherent in the foregoing scenario and the resolution of our inquiries. Ciomber involved a homeowner's suit against a gas supplier for damages in allegedly causing an explosion that mostly leveled the building and caused further fire damage. Plaintiff disclosed his expert's report which provided eight terse statements concluding that defendant was responsible for destruction of the house. The grounds for the conclusions were, as the Seventh Circuit put it, "even more laconic." For example, the report said the cause of the explosion was "a buildup of [defendant's] gas from failed [sic] pipe connection in the basement area." The expert "explained" that his conclusion was based on "inspection, analysis." There also were vague references to documents he purportedly reviewed before coming to his conclusions: (1) a county sheriff's report; (2) "[v]arious deposition transcripts and corresponding exhibits"; (3) the National Fire Protection Association's National Fuel Gas Code and [defendant's] Gas Code; and (4) National Propane Gas Association documents.5 Report Deficient Following communications between counsel about providing an amended report, which never came, defendant filed a motion to exclude the expert's testimony and another seeking summary judgment. Defendant contended the inadequate report should trigger the sanction and that, without the expert testimony, plaintiff could not establish that defendant's negligence caused the explosion. The district court took the motions under advisement and instructed the parties to proceed with the expert's deposition. There the expert elaborated on his report and further disclosed that he was asked to prepare the report less than a week before the district court's final deadline for the report's disclosure. The deposition consisted of two sessions over a month-long period. During that time plaintiff responded to the motion for summary judgment. The district court granted the motion to exclude the expert's testimony, concluding that plaintiff offered "no justification for his failure to provide a complete expert report in a timely fashion." With no admissible expert testimony, the court also granted the motion for summary judgment. Plaintiff appealed. One question was whether the trial court abused its discretion in excluding the expert's testimony. Plaintiff contended that the expert report's deficiencies were "harmless." Defendant was not prejudiced by the report because the report's shortcomings were "cured" when plaintiff's attorney supplemented the deficient report by filing with the district court a transcript of the expert's deposition testimony. Plaintiff's lawyer further explained that the report was not the result of the lawyer's "bad faith or willfulness" but was instead due to a medical emergency the lawyer suffered the day before the deadline for the report's disclosure. The Circuit Court held that these arguments "fail." Rule 26(a)(2) "mandates a complete and detailed report" of the expert's opinions, conclusions and the basis and reasons for them. The rule does not allow parties to cure deficient expert reports by supplementing them with later deposition testimony. The purpose of the rule is to provide notice to opposing counsel "before the deposition" as to what the expert witness will testify. This purpose "would be completely undermined" if the parties were allowed to cure deficient reports with later deposition testimony. Also, allowing parties to cure an insufficient report with later depositions would "further undermine" a primary goal of Rule 26(a)(2): "to shorten or decrease the need for expert depositions."6 After all, said the court, the parties' need for depositions would increase if they could use deposition testimony to provide information they should have initially included in their Rule 26(a)(2) report. The excuse of the medical emergency was unavailing for a number of reasons as well.7 Nor was the deficiency of the report "harmless." Because of its inadequacy, defendant was forced to depose the expert "with little or no understanding as to what he would testify." Adequate case preparation is one of the objectives of the expert witness discovery rules. Further, here, the district court was forced to devote considerable time and resources to address the matter of the deficient report - time and resources that instead could have been devoted to reaching a speedy resolution of plaintiff's lawsuit. Thus, imposition of the "automatic and mandatory" sanction of excluding the expert's deposition testimony was not an abuse of discretion. The Ciomber decision is a reminder that, notwithstanding even amicable agreements among counsel to exchange expert depositions, the Rule 26(a)(2) expert's report is not a perfunctory exercise, a mere formality that, once provided, can be forgotten or is of no moment because expert depositions will later ensue. The Rule 26(a)(2) expert report requirement has force, vitality and objectives of its own. Indeed, these are rooted in policy imperatives that many courts will not ignore. And, as Ciomber shows, the sanction can be most painful. Agency Reports A recent "unpublished" decision by the Fourth Circuit, Kennedy v. Joy Technologies Inc.,8 published in the Federal Appendix, reminds interested counsel that federal or state agency investigatory reports can furnish powerful evidence under Federal Rule of Evidence Rule 803(8)(C) but the niceties of the rule place certain responsibilities upon trial counsel who offer or oppose such evidence. As an exception to the hearsay rule, evidentiary admissibility of public records and reports under Rule 803(8)(C) is deemed to be presumed, based on the policy determination that admissibility is warranted "because of the reliability of the public agencies usually conducting the investigation, and their lack of motive for conducting their studies other than to inform the public fairly and adequately."9 The underlying premise of this hearsay exception is the notion that such public agency reports, records or statements are trustworthy. If, however, there is reason to believe that the trustworthiness of the facts, statements or conclusions of the agency are deficient or that the investigation that undergirds the report was inadequate, thereby impairing the trustworthiness of the statements relied upon by the adverse party proffering the evidence, then opposing counsel must bring the shortcomings to the attention of the court in an appropriate manner. Rule 803(8)(C) states that the agency reports are not excluded by the hearsay rule "unless the sources of information or other circumstances indicate lack of trustworthiness." The quoted language is an important basis for inadmissibility but it does not materialize spontaneously. Counsel has to examine, dig and investigate not only the report's statements but the factual underpinnings for the statements. Agency opinions and conclusions can have dramatic effect and considerable advocative impact for they allow proffering counsel the opportunity to point to an "impartial" public entity charged with a public purpose that came to some supportive or dispositive conclusion after investigation or inquiry. Clearly, challenging an agency's opinion or statement can be an onerous task but, by showing, as Rule 803(8)(C) says in the last sentence, that "the sources of information or other circumstances indicate a lack of trustworthiness," the evidence can be excluded. Note that the last sentence says "indicate" a lack of trustworthiness, so proof beyond a reasonable doubt is not required. When the trustworthiness of such an investigative report has been challenged, a court should assess and weigh factors such as: "(1) the timeliness of the investigation; (2) the special skill or experience of the investigators; and (3) any possible motivation problems."10 Other factors may, in the proper circumstances, be appropriate to such an evidentiary assessment, including "unreliability, inadequate investigation, inadequate foundation for conclusions, [and] invasion of the jury's province."11 These are not necessarily the only bases for "indicating" a lack of trustworthiness. There may be others. Affected counsel should be thoughtful and exhaustive in considering what other factors may impugn trustworthiness. In Kennedy, a coal miner died when a continuous miner machine crushed the worker. The administratrix of his estate sued the seller and manufacturer of the machine's remote controller. The Mine Safety and Health Administration (MSHA) sent an investigatory team which, within two to three hours of the accident, commenced their work. The investigation then proceeded over several months with an expanded team. An MSHA Report issued. It observed that there were no eyewitnesses to the accident. In the "Overview" section of the report was the conclusion that "[t]he most likely explanation for this continued operation is a build up of debris" in a socket of the remote controller which prevented the lever from returning to its neutral position. Then the report listed various "causal factors" and a "Conclusion" also pointing to debris in the remote controller device. Admissibility Presumed Defendants moved for summary judgment and to exclude the evidence of plaintiffs' expert witnesses. Plaintiff opposed the motions by filing the expert reports and the MSHA Report plus other documents illustrating alleged problems the seller had with debris accumulation. The district court conducted a motions hearing and issued its opinion the next day granting summary judgment. Acting sua sponte (since admissibility of the report was not a formal issue in the motions), the district court determined that the MSHA Report's opinion of a "most likely explanation" for the event was entirely speculative and inadmissible under Rule 803(8)(C). On appeal, the Fourth Circuit had to consider the admissibility issue. The appellate panel decided that the district court abused its discretion in excluding the MSHA Report's conclusion from its summary judgment assessment. "First and foremost," the lower court failed to recognize and apply a "presumption of admissibility" to the Report. Admissibility is assumed "unless there are sufficient negative factors to indicate a lack of trustworthiness."12 Further, the party opposing admission bears the burden of establishing its unreliability. Thus, Rule 803(8)(C) is said to be a "rule of admissibility" rather than a "rule of exclusion," so long as the report satisfies the rule's requirements. Here, the district court excluded the MSHA Report's conclusion from its summary judgment assessment without identifying or explaining any "negative factors" indicating a lack of trustworthiness. Although the trial court observed that the report's conclusion was speculative, the court "failed to identify any deficiencies" in the agency's investigation or in its testing of the remote controller. Citing a U.S. Supreme Court precedent, Beech Aircraft,13 the circuit panel noted that, if an agency investigatory report is otherwise admissible under Rule 803(8)(C), then portions of that report are not rendered inadmissible simply because they state a conclusion or opinion. Further, the district court did not consider other factors which "plainly weighed in favor of admissibility," such as the investigation over several months beginning immediately after the incident occurred; the MSHA investigators possessed "special skills and experience"; and the defendants did not suggest any "motivational problems" by the agency relating either to the investigation or the report. Since the trial court had erroneously excluded the report from its summary judgment consideration, a reversal of the decision below was required. The Kennedy decision is a good reminder that, when faced with public agency reports, opposing counsel has some intensive homework to do on the "lack of trustworthiness" issue.
Michael Hoenig is a member of Herzfeld & Rubin. 1. Ciomber v. Cooperative Plus Inc., 527 F.3d 635, 641 (7th Cir.
2008) (quoting from
Keach v. U.S. Trust Co., 419 F.3d 626, 639 (7th Cir. 2005);
David v. Caterpillar Inc., 324 F.3d 851, 857 (7th Cir. 2003)). |
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