Judge gavel with Justice lawyers, Businessman in suit or lawyer working on a documents. Legal law, advice and justice conceptThe Plaintiffs in a recent Mississippi federal case moved to strike the expert designation of Defendant’s witness, a Technical Environmental Engineer.

In support of their motion to strike, Plaintiffs argued that he was a non-specially retained/ non-reporting expert as to all matters addressed in his designation.

U.S. Magistrate Judge Jane M. Virden wrote in her opinion that a party must disclose, in accordance with the deadline, the subject matter on which a non-reporting expert is expected to testify and must provide a summary of the opinions and facts to which the witness will testify. According to Plaintiffs, Defendants’ designation of the engineering expert didn’t comply with this disclosure requirement, and they asked that it be stricken as unjustified and prejudicial.

Defendants argued that the engineering expert was a non-reporting expert on only the first five reports referenced in an exhibit of his designation, and they contended that those reports sufficiently summarize the subject matter, opinions, and facts on which he is expected to testify. As for the remainder of the issues, Defendants asserted that the expert was a specially retained expert, and the documents referenced in that capacity satisfied Rule 26(a)(2)(B)’s requirement that such an expert provide a report prepared and signed by him containing among other information, “(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them . . .”

On the day of the disclosure deadline, Defendants made the expert designation of the engineer. They attached a copy of his curriculum vitae and list of reports, including all opinions, analysis, sources, and references contained which have previously been submitted to the EPA and/or the Mississippi Department of Environmental Quality and previously produced to all parties, upon which the expert would rely and testify. The disclosure stated that the materials reflected the subject matter on which the engineer would testify.

The parties agreed that the engineering expert was a non-reporting expert on the matters 1-5, but they disagree on whether the engineering expert is specially retained as to matters 6-18. The judge noted that it appeared that Defendants’ insistence that the engineering expert be treated as a specially retained expert springs from the fact that work product protection is afforded such experts’ communications with counsel pursuant to Rule 26(b)(4)(C), but not to non-retained reporting experts.

Defendants argued that the engineering expert was specially-retained because they began anticipating litigation. And they said that they employed, from that point forward, the engineering expert as a specifically retained expert; any reports appearing were Rule 26(a)(2)(B) reports. In addition, Defendants claimed that, as a specially retained expert, the engineer consulted with Defendants’ counsel, was made aware of, received and considered facts and data additional to the materials growing out of his and others’ involvement in remediation- and litigation-oriented events, and arrived at expert conclusions reflected in five specified reports which were identified Defendant’s expert disclosures.

Judge Virden noted that in January 2015, when the engineering expert was allegedly specially retained by Defendants, he was already—and had been for many years—performing environmental assessments and remedial services for Defendant at the facility in response to EPA/MDEQ requirements. He continued to do so after January 2015 in the same fashion. The judge found that to the extent there were reports listed, they were the same or substantially the same type of reports as those he provided on behalf of Defendant prior to January 1, 2015.

Judge Virden explained that merely designating a person as a specially retained expert once the prospect of litigation is anticipated doesn’t make that designation proper. Further, it’s the means by which a person who’s expected to testify has gained the knowledge and reached the opinions to be expressed that governs the determination of whether the person is to be considered a specially retained reporting expert or a non-reporting expert. A witness is “specially employed” under Rule 26(a)(2)(B) when “he has no personal involvement in facts giving rise to the litigation, but is engaged to provide opinion testimony, regardless of whether he is compensated or simply volunteers. But a non-specially retained expert’s testimony “arises not from his enlistment as an expert, but, rather, from his ground-level involvement in the events giving rise to the litigation,” the judge opined, quoting an earlier case.

Here, the judge found that any of the reports that were prepared by the expert were prepared for Defendant in connection with remediation work mandated by the EPA/MDEQ, irrespective of the prospect of any lawsuit. His knowledge of the site was gained from years of working at or near the site on behalf of Defendant in order to satisfy government requirements. To suggest that the engineering expert’s opinions weren’t based on his own personal involvement in ongoing work at the site both before and after January 2015 was “simply not colorable.”

Judge Virden held that the engineering expert wasn’t a specially retained expert, and even if he were, the reports listed weren’t Rule 26(a)(2)(B) reports.

The judge found that most of the reports listed in the designation covered matters which Defendant, in other pleadings, has represented but have nothing to do with the engineering expert’s anticipated testimony in this case. Nevertheless, the judge found that insufficiency of a designation alone doesn’t mandate striking the expert where the insufficiency is either justified or essentially harmless. Thus, the insufficient designation of the engineering expert as a non-retained expert on the specific materials, though unjustified, wasn’t so harmful as to warrant striking him.