Litigation

Middle District of Tennessee Rule on Rule 26 Expert Reports Criticized by 6th Circuit

By Branham & Day

In an opinion just handed down by the 6th Circuit Court of Appeals, the Court criticized the application of the Middle District of Tennessee's Local Rule regarding expert witness reports.  The Rule states:

"Expert witness disclosures shall be made timely in accordance with any order of the Court, or if none, in accordance with Fed. R. Civ. P. 26(a)(2). Expert witness disclosure statements shall not be supplemented after the applicable disclosure deadline, absent leave of Court. No expert witness shall testify beyond the scope of his or her expert witness disclosure statement. The Court may exclude the testimony of an expert witness, or order other sanctions provided by law, for violation of expert witness disclosure requirements or deadlines. ..."

Rule 39(c)(6)(d). 

In the case before the 6th Circuit, the Defendant's expert economist failed to state in his Rule 26 Report that he was relying on Generally Accepted Accounting Principles (GAPP) in arriving at his figures.  Counsel for the Plaintiff objected when this testimony was given at trial and, based on the local rule, the trial court excluded the economist's testimony.  Given that this evidence was a necessary part of the defendant's case, the Court proceeded to enter judgment as a matter of law against the defendant. 

In reversing the trial court's judgment, the 6th Circuit held that application of the local rule in this manner was inconsistent with the Federal Rule 89(a)(2),  which provides that "[a] local rule imposing a requirement of form shall not be enforced in a manner that causes a party  to lose rights because of a nonwillful failure to comply with the requirement."  The Court found that limiting an expert to simply reading from his written report at trial was inconsistent with the purpose of Rule 26(a)(2)(b).

Following this opinion, it is unclear whether the local rule itself is dead or whether the 6th Circuit's holding is limited to the Rule's strict application in this case.  One thing is for sure, attorney's practicing in the Middle District of Tennessee should be aware of this issue and its potential implications when preparing their cases for trial.

Read the full opinion in Thompson v. Doane here.

Full post as published by Tennessee Business Litigation Law Blog on December 22, 2006 (boomark / email).