Legal Memorandum: Disclosure of Expert Witness and Written Report

Issue: Under federal law, must an expert witness provide a written report of his or her conclusions prior to testifying?

While treating physicians may sometimes testify without providing a report, the same does not apply to testifying experts who have not treated the plaintiff/patient.  See Brenner v. Conrail, 806 F. Supp. 2d 786, 790-91 n.4 (E.D. Pa. 2011) (“Procedurally, parties must disclose the identity of any expert witness expected to be used at trial and must provide a written report prepared and signed by the expert.  Fed. R. Civ. P. 26(a)(2)(A), (B).  The report of an expert ‘retained or specially employed to provide expert testimony in the case’ must contain, among other information, ‘a complete statement of all opinions the witness will express and the basis and reasons for them.'”).  And, even treating physicians specially retained to provide expert testimony on causation issues are required to provide the report required by Fed. R. Civ. P. 26(a)(2)(B)(i).  Id.  (citing Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 900 (8th Cir. 2010)). 

Exclusion of the expert testimony is an appropriate remedy for a party’s failure to comply with Rule 26’s report requirements.  See Yeti By Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105 (9th Cir. 2001); Finley v. Marathon Oil Co.,75 F.3d 1225, 1230 (7th Cir. 1996).

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