Federal Litigation Update: The Eleventh Circuit Clarifies When Expert Reports are Required by Fed. R. Civ. P. 26(a)(2)(B).
On August 4, 2023, in Cedant v. United States, No. 21-12661, –F.4th–, 2023 WL 4986402 (11th Cir. August 4, 2023), the Eleventh Circuit clarified who must provide expert reports under Fed. R. Civ. P. 26(a)(2)(B). More specifically, the Court clarified what it means to be “retained or specially employed to provide expert testimony” under Rule 26(a)(2)(B).
1. A primer on expert reports and disclosures under Rule 26.
Federal Rule of Civil Procedure 26 provides the rules for disclosures during civil litigation and the general provisions governing discovery.
Rule 26(a)(2) provides for disclosures related to expert testimony. Under 26(a)(2)(B), “if the witness is one retained or specially employed to provide expert testimony in the case…,” then the expert must provide a written report containing the information required at 26(a)(2)(B)(i)-(vi). This written report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.
If the witness is not required to provide a report under 26(a)(2)(B), then 26(a)(2)(C) merely requires that the expert disclosure state: (i) the subject matter on which the witness is expected to present evidence under Fed. R. Evid. 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.
As the Eleventh Circuit explained, the differences between these disclosures and reports are significant. “For one, a Rule 26(a)(2)(B) written report must be ‘prepared and signed’ by an expert, while a Rule 26(a)(2)(C) disclosure may be submitted by a party on behalf of its expert.” Cedant, 2023 WL 4986402 at *4. Additionally, “because written reports must include the ‘basis and reasons’ for ‘all opinions’ offered by the expert, plus the ‘facts or data considered by the witness,’ they are often sprawling compared to the short summary of opinions required in a Rule 26(a)(2)(C) disclosure.” Id.
2. Cedant clarifies what it means to be “retained” under Rule 26(a)(2)(B) such that an expert report is required.
Cedant involved whether treating physicians who were first hired by their patients to treat rather than to testify are required to provide a report under Rule 26(a)(2)(B). In finding that no report was required, the Eleventh Circuit explained that the term “retained” does not simply mean paying a witness in exchange for expert testimony. Such a “hyper-literalist approach…would render Rule 26(a)(2)(C) a virtual nullity….” Cedant, 2023 WL 4986402 at *5.
Instead, the “retained” v. “nonretained” distinction depends on when and why an expert witness was hired. “A retained expert witness typically will get involved in a case to provide expert testimony and will derive her knowledge of the case from preparation for trial. A non-retained witness, on the other hand, will have at least some first-hand factual awareness of the subject matter of the suit.” Id. at *7. Moreover, “[t]he expert’s job title, the subject or scope of his testimony, and the way that he formed his opinions are irrelevant inquiries for Rule 26(a)(2) purposes.” Id. Instead, “[t]he only question presented by the Rule’s text is whether the witness was retained as an expert or otherwise employed as described in Rule 26(a)(2)(B).” Id. (emphasis supplied). As the Eleventh Circuit succinctly summarized, “whether an expert was ‘retained’ hinges on how she formed her relationship with the party she will testify for—not on the content of the testimony.” Id. at *1.
Here, because the case involved treating physicians and no modification to the default rule occurred, the lower court’s exclusion of these experts for failure to file reports was erroneous. The Eleventh Circuit vacated the order excluding Cedant’s experts and remanded to the lower court to either re-evaluate its filings under Rule 26(a)(2)(C) or issue a new order requesting Rule 26(a)(2)(B) reports for causation witnesses.
3. Expert report requirements under Rule 26(a)(2)(B) and (C) are merely the default rule that can be modified by stipulation or court order.
While Cedant provides clarity on when written expert reports are required, practitioners must remember the approach in Rule 26(a)(2)(B) and (C) is merely the default rule. In fact, the Eleventh Circuit expressly pointed this out in its opinion.
The text of Rule 26(a)(2) offers flexibility for each category of experts. Both subsections (B) and (C) contain language that reports and disclosures must include the specified components “[u]nless otherwise stipulated or ordered by the court.” Fed. R. Civ. P. 26(a)(2)(B)–(C) (emphasis added). Thus, Rule 26 expressly permits district courts (through orders or local rules) and parties (through written stipulations) to modify the usual disclosure requirements. See also 1993 Committee Notes on Rule 26(a)(2) (“By local rules, order, or written stipulation, the requirement of a written report may be waived for particular experts or imposed upon additional persons who will provide opinions under Rule 702.”). This language allows for adjustments to the default rules on a case-by-case basis. Should a district court modify the requirements of Rule 26, the modifications of the default rule would be reviewed for abuse of discretion. Cedant, 2023 WL 4986402 at *1.
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