A defendant recently sought to strike an insurance consumer survey report, along with an insurance expert’s testimony. The plaintiff designated the expert to serve as its expert witness to opine on the issue of confusion in the public with respect to the parties’ respective marks.
Defendant’s primary argument was that the expert failed to comply with Federal Rule 26(a)(2)(B) because she didn’t provide a complete statement of the reasons for her opinions, nor did she disclose the data she considered in forming her opinions.
Plaintiff responded that Defendant failed to provide an example of any specific piece of information omitted from the expert’s expert reports and that Defendant’s argument should be disregarded.
U.S. Magistrate Judge Edwin G. Torres of the Southern District of Florida wrote in his opinion that Federal Rule 26(a) requires that any expert report contain the following information:
- a complete statement of all opinions the witness will express and the basis and reasons for them;
- the data or other information considered by the witness in forming them;
- any exhibits that will be used to summarize or support them;
- the witness’s qualifications, including a list of all publications authored in the previous 10 years;
- a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and
- a statement of the compensation to be paid for the study and testimony in the case.
Judge Torres noted that these requirements “are to be taken very seriously” as Rule 26(a) was intended “not only to prevent surprise to opposing counsel, but to decrease the need for expert depositions and thereby conserve the resources of both parties.”
Federal Rule 37(c)(1) states that “[i]f a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” The judge noted that the Rule “requires absolute compliance with Rule 26(a).”
However, when an expert report doesn’t provide the required disclosures under Rule 26(a)(2)(B), “the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.” Judge Torres explained that this means that “the expert witness discovery rules are designed to allow both sides in a case to prepare their cases adequately and to prevent surprise . . . [and therefore] compliance with the requirements of Rule 26 is not merely aspirational.”
Citing an earlier Florida District Court decision, Judge Torres explained that substantial justification is “justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request.”
Further, the advisory committee notes to Rule 37 “strongly suggests that ‘harmless’ involves an honest mistake on the part of the party coupled with sufficient knowledge on the part of the other party.” The burden of proof, he said, is on the potentially sanctioned party to prove harmlessness or justification.
In this case, Defendant claimed that the expert failed to provide a complete statement of the reasons for her opinions and failed to disclose the facts and data she considered in forming her opinions.
The judge found that Defendant’s argument was unpersuasive because the insurance expert provided a comprehensive explanation of her findings and opinions — including a detailed section on the method, design, and data that she considered. She also included appendices to her reports for additional background information.
Although Defendant claimed that the expert’s report failed to meet the requirements in Rule 26, it failed to show the judge any omissions that should’ve been included in the reports. And in an independent review, Judge Torres could find none. As such, Defendant’s argument lacked merit.
As a result, Defendant’s motion to exclude the expert report and testimony was denied.