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Complying with Rule 26 of the Federal Rule of Civil Procedure (Part V of VII)

What does Rule 26 of the Rules of Federal Civil Procedure provide? Using FRCP 26 as a basis for what is needed in federal court and possibly state court, the author discusses what is required from experts in their report.

Expert ReportYou have been retained on an exciting case and (depending on your field of expertise) over the past several months you have: reviewed documents, surveyed the literature, attended site visits, completed inspections, conducted interviews, examined patents, conducted experiments, analyzed data, performed calculations, or ran computer simulations.  Whew!  You reached your conclusions, and you are ready to draft the expert report.

If the case is in Federal Court, your report must comply with Rule 26 of the Federal Rules of Civil Procedure (FRCP).  This is the rule that requires opposing parties to disclose to each other the identities of the expert witnesses each may use at trial, and accompanying the disclosure is a written report prepared and signed by the expert.  You may hear the retaining attorney refer to your expert report as a “Rule 26 report” because the information required in your report is listed in Rule 26(a)(2) – Disclosure of Expert Testimony.

Generally speaking, a Rule 26 report must contain the following information (adapted from Rule 26(a)(2)(B) as amended in 2010):

  1. a statement of your expert opinions, and the basis and reasons for them;
  2. the facts or data considered in forming your opinions;
  3. any exhibits (charts, figures, diagrams) used to summarize or support your opinions;
  4. your qualifications and authored publications from the past 10 years;
  5. your case history for the previous four years in which you testified in deposition or trial; and
  6. compensation for the work you have done since retention, including testifying.

The FRCP Rule 26 report requirements are not meant to be a checklist for a Daubert-proof report; in fact, the word “methodology” does not even appear in the list.  The rule exists to ensure opposing parties disclose sufficient information about their experts so that each side can prepare for cross-examination of each other’s experts in deposition or at trial.  Most state courts have adopted similar guidelines, and if your case is in state court, check with the attorney on what the specific report requirements are for that jurisdiction.

Answering the Who, What, Where, Why, and How

Can you write a Daubert-proof report?  The simple answer is “no.”  Can you write an expert report to make it challenging for the opposing side to prepare a motion to exclude your testimony and thus minimize the potential for a successful challenge?  The answer to that question is “yes!”  The following discussion presents suggestions on what to include in your report, using the Rule 26 requirements as a template.

Qualifications and Publications

To comply with Rule 26, attach a current CV or resume to the end of your expert report.  Though this document typically contains a listing and brief descriptions of your professional achievements and a listing of your published articles, by itself it does not necessarily explain to the court who you are, e.g. the “knowledge, skill, experience, training, or education…” (FRE 702) you have that is directly relevant to your role as expert in this case.  Therefore, expand on pertinent information presented in your CV or resume in the body of your expert report.  Items to consider include:

  • Describe how your academic training provides knowledge in the subject areas upon which you are opining.  Recall the Huss case (see Part III in this article series) in which the court admitted the medical expert in part because his education was sufficient to render an opinion after reviewing the medical literature.
  • Provide examples of the projects, tasks, or responsibilities that contain elements relevant to your litigation work, and if the experience is substantial, quantify the experience.  Recall the Santos case (see Part III) in which the court was impressed that the mechanical engineering expert had analyzed 2,000 slip and falls and admitted his testimony.
  • Explain what your certifications, licenses, or trainings provided in terms of specialized knowledge or skills if you relied on any of those in your litigation work.  Recall that the Santos court also referred to the expert’s certification in a relevant discipline as a basis to admit his testimony.
  • In addition to listing your publications on your resume, identify any specific publications you authored if you followed the same or similar methods of inquiry and reached similar conclusions in your litigation work.
  • Identify presentations given at workshops or conferences if the topic is related to the work performed in reaching your opinions.

The “Qualifications” section of your report is your first opportunity to demonstrate you are sufficiently qualified.  Even if you did something only a few times, if it was done outside of litigation and is relevant, include a detailed description of that work.

Case History

For Rule 26 purposes, attach a list of the cases in which you testified as an expert at deposition or trial in the past four years.  The listing should be similar to the case style: Plaintiff v. Defendant, Case No., and Jurisdiction.  You may choose to include the type of testimony (deposition, trial, or both) and the date of your testimony.  Recall from previous articles in this series that judges tend to consider prior decisions made by the same or even other jurisdictions involving a similar set of facts (including admissibility of expert testimony).  Therefore, in your “Qualifications” section, you should elaborate on your role in any of those cases in which you were qualified by the court if they cover similar issues and you gave similar opinions.

Your Expert Opinions

When formulating your opinions, it is extremely important to talk with the retaining attorney on what language to include or to avoid.  Because your opinions will correspond to either the claims or the defenses, you may need to include certain language for the legal team to show the court that there is evidence, in the form of expert testimony, to support their side’s argument.  From a Daubert perspective, your opinions need to logically flow from the work you conducted during your retention and therefore should be expressed to convey that to the court.

The Basis for Your Opinions

In your expert report, a statement explaining the basis of your opinions typically precedes your statement of opinions and your reasons.  For example, you may say, “I have formed my opinion(s) based upon documents supplied through discovery, peer-reviewed literature, industry standards, site visits and interviews, and my training, experience, and education.”  This statement then provides the foundation for the methodology and what facts or data you considered in forming your opinions.

The Reasons for Your Opinions

This is the “nuts and bolts” or “Methodology” section of your report.  It explains to the court exactly what you did, how you did it, and why.  This is your opportunity to describe to the court the guidelines, methods, procedures, principles, protocols, analytical processes, mathematical models, standards, or techniques you employed or followed in order to reach your conclusions and formulate your opinions, and why these tools were appropriate for the set of facts, issues, or circumstances in the case.  Even the simplest of methods utilized needs to have justification.  You can also refer back to your “Qualifications” section to explain what aspects of your professional background were used in selecting your methodology and in understanding its applicability to the current case.  Also, you can summarize work from prior cases listed in your case history in which you used the same or a similar methodology, and the court admitted your testimony.

Remember, in order for your expert opinions to be admissible at trial, your underlying methodology must be robust enough to withstand a Daubert challenge and scrutiny by the court.  It is essential your expert report clearly conveys that your methodology is reliable—generally speaking, it is accepted within your field or profession or can be objectively validated, and your methodology is relevant—and that it is closely related to both the facts and your conclusions or opinions.  When drafting your report, review both FRE 702 and the Daubert factors, and find a way to describe your work in terms of those criteria.  Judges look for straightforward comparisons between an expert’s work and the admissibility criteria on which they rely in determining whether to admit their testimony.

The Facts or Data

You are required to identify the materials you considered and/or relied upon in forming your opinions.  You need to include enough information to allow the opposing side to obtain those materials or request them from you.  For example, include the Bates number and date for discovery documents, the full reference for publications, or the title and the date of any site visits, interviews, investigations, or examinations.  You can provide this information by attaching a separate list at the end of your expert report.  Alternatively, you can embed citations or footnotes directly into the body of your report.

From a Daubert perspective, some courts consider an expert’s choice of data or facts when evaluating the reliability of expert testimony, even though the Daubert court explicitly indicated the underlying data is not supposed to be evaluated by the court.  Therefore, clearly explain your approach for selecting the data on which you relied.  For example, if there were facts or data you considered and discounted, you will want to explain the reason for not relying on that information to show you did not “cherry pick” the data in support of your side’s arguments.  Maybe the information was not supported by any other sources, or maybe there was contradictory evidence that had more credibility, or maybe there were gaps in the data.

If you collected and analyzed your own data, explain how you validated the data—again referring to the Daubert factors for guidance.  Similarly, if you used data provided to you by the retaining side, explain how you independently validated the information.  Recall the ASK case (from Part IV) in which the circuit court upheld the trial court’s exclusion of the expert based on unreliable methods stemming from unverified data.

Exhibits

If you generated any charts, figures, tables, diagrams, etc. to support your expert opinions, those graphics either need to be included as an attachment or embedded in your report.  From a Daubert standpoint, if you are using a graphical representation of your analysis, ensure it is presented clearly, and permits the court to visibly understand how your opinions are a direct result of your methodology.

Compensation

Rule 26 requires a statement of the compensation you received for your work and testimony.  At a minimum, attach your current fee schedule and ask the retaining attorney to provide your invoices detailing fees and expenses for your services.  You may need to estimate compensation for testimony you have yet to offer.  Do not be embarrassed or concerned about your compensation.  A Daubert motion cannot be based on how much money you received, and courts do not expect experts to conduct research or testify for free.

Summary

Rule 26 requires opposing sides divulge all of their evidence, including expert testimony, so there are no surprises at trial.  Therefore, the expert report must be a complete statement of everything the expert intends to say on the witness stand.  Based on the exchange of information, a settlement may be reached before trial—a scenario preferable by courts with full dockets.  However, this exchange may also lead to motions to exclude experts and to dismiss the case.  Therefore, the expert report (and subsequent deposition) has even greater importance to an expert and the case.  When writing your Rule 26 report, consider the above suggestions on how to demonstrate your qualifications and testimony meet FRE 702.  The courts are very clear that attorneys must have a legitimate basis to file a motion to exclude expert testimony—not solely on the grounds that your opinion differs from their expert’s opinion, or their expert has more years of experience than you do.

This article originally appeared on IMS-ExpertServices.com in the Expert Library on May 20, 2015.

Wendy Pearson, founder of Pearson Research Group, has more than 15 years of experience providing strategic litigation support and expert witness support on over 50 major cases involving contaminants in the environment. She assists attorneys with case assessments, case strategy, understanding technical issues, fact and expert witness discovery, Daubert motions and responses, and direct and cross exams of experts at trial. Ms. Pearson fully supports expert witnesses throughout the litigation process to ensure high quality work product and sufficient preparation for deposition and trial. She holds a B.S. in Civil Engineering and a M.S. in Environmental Science and Engineering.

Ms. Pearson can be reached at (814) 240-2418 or by e-mail to wnpearson@pearson-rg.com.

The National Association of Certified Valuators and Analysts (NACVA) supports the users of business and intangible asset valuation services and financial forensic services, including damages determinations of all kinds and fraud detection and prevention, by training and certifying financial professionals in these disciplines.

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