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Legal Memorandum: Motion to Strike Expert Opinion Testimony

Issue: What is the Standard for Granting a Motion to Strike Expert Opinion Testimony?

Area of Law: Litigation & Procedure
Keywords: Motion to strike expert opinion testimony; Identification of experts
Jurisdiction: Federal
Cited Cases: None
Cited Statutes: Local R. 16.1(K)
Date: 12/01/2008

“Where expert opinion evidence is to be offered at trial, summaries of the expert’s anticipated testimony or writing expert reports . . . shall be exchanged by the parties no later than ninety days prior to the pretrial conference, or if no pretrial conference is held, ninety days prior to the call of the calendar.”  Local R. 16.1(K) (emphasis added). 

Local Rule 16.1(K) provides for the timing of identification of experts, as discussed above, and states further what information must be provided.  Local Rule 16.1(K).  The parties must exchange “summaries of the expert’s anticipated testimony or written reports,” id. (emphasis added); see also Dix v. United Parcel Serv., No. 04-14358-CIV (S.D. Fla. June 28, 2006) (the plaintiff did not provide a report or a summary), and if the expert report is provided, certain items must be included in the expert report.   Id.

When there is no prejudice by a party’s untimely disclosure of an expert’s opinions, it is appropriate to deny a motion to strike an expert or exclude the expert’s report.  Jones v. Carnival Corp., No. 04-20407-CIV (S.D. Fla. Apr. 26, 2005).  This is especially the case when the information about the expert and his or her proposed testimony has been supplemented.  See Wexler v. Lepore, No. 04-80216-CIV (S.D. Fla. Oct. 15, 2004).  The proper remedy when a party complains that expert information was disclosed untimely is to allow deposition of the expert even if it must be outside the scheduled discovery period.  See Tokarz v. TRG Columbus Dev. […]

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