Experts in Federal Practice

Today I spoke at the annual federal civil procedure update seminar presented in Chicago by the Practising Law Institute. This year's program was entitled “Federal Civil Practice Update 2011: A Practical Guide to New Developments, Procedures & Strategies.” I presented two topics relating to experts in federal practice: (1) methods of challenging an opponent’s experts, and (2) the 12/1/2010 amendments to the Federal Rules of Civil Procedure regarding expert discovery. I authored two articles that were published in the PLI Handbook for the seminar, which I am making available for download here:

"Challenging An Expert’s Opinion and Testimony"

"The 2010 Amendments to the Expert Discovery Rules"

I hope you find these materials useful.

Expert Testimony Remains Absolutely Privileged Against Being Basis For Claims

Most states recognize an absolute privilege for statements in testimony or pleadings in a judicial proceeding. In MacGregor v. Rutberg, 478 F.3d 790 (7th Cir. Feb. 27, 2007), the plaintiff attempted to carve out an exception for expert testimony. She argued that while acting as an expert for a patient that was suing her for malpractice, defendant neurosurgeon gave testimony that defamed her. Applying Illinois law, the court refused to exempt expert testimony from the absolute testimonial privilege. The court observed, "Litigation is costly enough without judges’ making it more so by throwing open the door to defamation suits against expert witnesses."

Sixth Circuit Finds Rule 26(a)(2) Requires Disclosure Of All Information Provided To Testifying Experts

In Regional Airport Authority v. LFG, LLC, No. 05-5754, 2006 WL 2368323 (6th Cir. Aug. 17, 2006), the Sixth Circuit became the second court of appeals to hold that the 1993 amendments to Fed. R. Civ. P. 26(a)(2) created a bright-line rule mandating disclosure of all information provided to testifying experts, even if such materials included attorney work product.

Since 1993, courts have split over the issue of whether work product that attorneys provide to their retained testifying experts must be disclosed. Beginning with Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289 (W.D. Mich. 1995), some district courts have held that work product shared with a testifying expert does not necessarily need to be produced because Rule 26(b)(3) and (4) retain some protections for work product.

However, in Regional Airport Authority the Sixth Circuit overruled the Haworth rule and found that amended Rule 26(a)(2) trumps Rule 26(b)(3) and (4).

Supreme Court to Address Whether Experts' Fees Included In Fee Award

A number of federal statutes permit the district court to award attorneys’ fees and costs to the prevailing party. In Murphy v. Arlington Central School Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005), the court allowed the award not only of attorneys’ fees but also the fees of an expert “educational consultant” under the fee-shifting provisions of the Individuals With Disabilities Education Act.

The U.S. Supreme Court has granted the school district’s petition for certiorari, limited solely to the question of whether the statute allowing the court to “award reasonable attorneys’ fees as part of the costs” to the prevailing party also allows the award of experts’ fees. Arlington Central School Dist. Bd. of Educ. v. Murphy, No. 05-18 (Jan. 5, 2006).