Legal Memorandum: Grounds for Excluding Expert Testimony

Issue: Under federal law, does a party’s failure to make an expert witness available for deposition create grounds for barring the expert’s testimony at trial?

Area of Law: Litigation & Procedure
Keywords: Expert testimony; Deposition; Failure to make an expert witness available
Jurisdiction: Federal
Cited Cases: 881 F.2d 566; 893 F.2d 787
Cited Statutes: None
Date: 03/01/2015

A failure to make an expert witness available for deposition in a timely manner constitutes grounds for excluding his testimony.  See, e.g., Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 572-73 (8th Cir.1989) (no error in excluding witness where witness not made available until day preceding testimony)); Geiserman v. MacDonald, 893 F.2d 787, 790-92 (no error in excluding expert who was designated late); Small v. GMC, 2006 U.S. Dist. Lexis 83717, at ¶¶ 9-12 (D. Me. Nov. 15, 2006) (same).  As the Third Circuit has noted, “it is important that each side have an opportunity to depose the other side’s experts in order to develop strong critiques and defenses of their experts’ methodologies.”  In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 739 (3rd Cir. 1993).


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