State adopts fed expert disclosure

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Editor’s Note: The following is the first of a two-part article on the new Minnesota Rules of Civil Procedure concerning expert disclosures. 

If one of your clients becomes involved in a new lawsuit after July 1, 2013, and you anticipate a need for expert testimony, you will want to pay close attention to the Minnesota Supreme Court’s recent amendments to the Minnesota Rules of Civil Procedure concerning expert disclosures. The new Rule 26 requires written disclosures from experts at least 90 days before the date set for trial. The Minnesota Supreme Court deserves applause for adopting the same expert disclosure requirements as the federal rules.

Looking forward to Minnesota’s new rules, which took effect on July 1,  part one of this two-part article explains (1) the requirement of a written expert report, (2) which type of expert must provide a written report, and (3) rebuttal and supplemental expert disclosures. Part two of this article—to be published next month—will address the consequences of failing to make timely expert disclosures and potential discovery issues that may linger after these amendments.

Minnesota’s new Rule 26.01(b) requires written reports by experts retained or specially employed to provide expert testimony.

Effective July 1, Minnesota Rule of Civil Procedure 26.01 will be amended to mirror Federal Rule of Civil Procedure 26(a)(2) governing the disclosure of expert testimony. The new Rule 26.01 will require the same automatic disclosure of an expert’s written report as the federal rule. See Order Adopting Amendments to the Rules of Civil Procedure and General Rules of Practice Relating to the Civil Justice Reform Task Force (Minn. Feb. 4, 2013). The new Rule 26.01(b) requires an expert “retained or specially employed to provide expert testimony … or one whose duties as the party’s employee regularly involve giving expert testimony” to submit a written report that “must contain … a complete statement of all opinions the witness will express and the basis and reasons for them,” and “the facts or data considered by the witness in forming them,” among other things. Specifically, the expert’s written report must contain the following items:

(1) a complete statement of all opinions the witness will express and the basis and reasons for them;

(2) the facts or data considered by the witness in forming them;

(3) any exhibits that will be used to summarize or support them;

(4) the witness’s qualifications, including a list of all publications authored in the previous 10 years;

(5) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and

(6) a statement of the compensation to be paid for the study and testimony in the case.

Because Minnesota’s Rule 26.01(b) reads the same as the federal Rule 26(a)(2), it is likely that Minnesota state courts will look to federal decisions for guidance in interpreting this new rule. The Minnesota Supreme Court, in T.A. Schifsky & Sons, Inc. v. Bahr Const., LLC, stated that “[w]here the language of the Federal Rules of Civil Procedure is similar to language in the Minnesota civil procedure rules, federal cases on the issue are instructive.” 773 N.W.2d 783, 790 n.3 (Minn. 2009). The Eighth Circuit, in Tenbarge v. Ames Taping Tool Sys., Inc., cautioned that “[d]iscovery of expert opinion must not be allowed to degenerate into a game of evasion.” 190 F.3d 862, 865 (8th Cir. 1999) (quoting Voegeli v. Lewis, 568 F.2d 89, 97 (8th Cir. 1977)).

The expert’s written report should be “detailed and complete.” Fed. R. Civ. P. 26(a)(2), Adv. Comm. Note, 1993. The purpose of the report is to avoid the disclosure of “sketchy and vague” expert information. Id. The report is “intended to set forth the substance of the direct examination,” and it “should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness.” Id. The purpose of the rule is to eliminate unfair surprise to the opposing party and conserve resources:

The information disclosed under the former rule in answering interrogatories about the “substance” of expert testimony was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in preparing for a deposition of the witness. Revised Rule 37(c)(1) provides an incentive for full disclosure; namely, that a party will not ordinarily be permitted to use on direct examination any expert testimony not so disclosed …

Since depositions of experts required to prepare a written report may be taken only after the report has been served, the length of the deposition of such experts should be reduced, and in many cases the report may eliminate the need for a deposition.Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir. 1995) (quoting Fed. R. Civ. P. 26(a)(2)(B) advisory committee’s note).

The new Rule 26.01(b)(4) requires parties to make their expert disclosures “at the times and in the sequence that the court orders.” Minn. R. Civ. P. 26.01(b)(4). Absent a scheduling order or stipulation, the expert disclosures must occur “at least 90 days before the date set for trial or for the case to be ready for trial.” Minn. R. Civ. P. 26.01(b)(4)(A). The rule permits rebuttal reports within 30 days after the other party’s disclosure. Minn. R. Civ. P. 26.01(b)(4)(B). Parties would be well-advised to stipulate to (or otherwise obtain from the court) a scheduling order that sets forth clear deadlines for expert disclosures and any rebuttal expert disclosures. Although this probably has been the practice of many attorneys before, the new amendments to the rules will make it an even higher priority for all.

An expert who is not retained or specially employed to provide testimony need not disclose a written report, but the rule requires a summary disclosure of the witness’s “facts and opinions.”

The requirement of a written report “applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony.” Fed. R. Civ. P. 26(a)(2), Adv. Comm. Note, 1993. The rule does not require a written report from an expert whose opinions are based on firsthand knowledge, and who does not regularly provide such testimony. For instance, a treating physician can be “called to testify at trial without any requirement for a written report.” Id. On the other hand, experts who have no personal knowledge of the underlying facts and provide testimony based on secondhand information must submit a written report because they were retained or specially employed for the purpose of providing the expert testimony. For the expert witness who does not have to provide a written report, the party must disclose “a summary of the facts and opinions to which the witness is expected to testify.” Minn. R. Civ. P. 26.01(b)(3). This disclosure is “considerably less extensive” than the written report required by the other part of the rule. Fed. R. Civ. P. 26(a)(2)(C), Adv. Comm. Note, 2010.

The new Rule 26.01(b) permits rebuttal reports and requires appropriate supplemental disclosures.

Minnesota’s new Rule 26.01(b)(4)(B) permits a rebuttal expert report within 30 days after the other party’s disclosure if “the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party….” Minn. R. Civ. P. 26.01(b)(4)(B). Further, parties must supplement the disclosures made in the expert report “when required under Rule 26.05.” Minn. R. Civ. P. 26.01(b)(5). A party must “seasonably” supplement or correct under Rule 26.05 “if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Minn. R. Civ. P. 26.05.

The federal courts do not countenance phony rebuttal or supplementation of expert reports. The provision of the rule permitting supplementation does not give license to “sandbag one’s opponent with claims and issues which should have been included in the expert witness report.” Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc., 829 F. Supp. 2d 802, 821 (D. Minn. 2011) (quoting Beller ex rel. Beller v. United States, 221 F.R.D. 696, 701 (D.N.M. 2003)). In Wegener v. Johnson, for example, the Eighth Circuit rejected the argument that an expert’s “supplemental testimony” rebutted the opposing expert, finding that the expert’s “supplemental testimony did not rebut any new information disclosed” in the adverse expert’s supplemental report. 527 F.3d 687, 691 (8th Cir. 2008). The Eighth Circuit concluded that the supplemental testimony was untimely and was not offered solely to rebut any new information. As a result, the Eighth Circuit held that the district court did not abuse its discretion in excluding the supplemental expert testimony.

Conclusion

After July 1, when you have a lawsuit that will involve expert testimony, you will want to carefully review Minnesota’s new expert disclosure requirements. You should determine whether your type of expert must provide a written report, follow the requirements of the written expert report, and make the necessary rebuttal or supplemental expert disclosures.

Monte Mills is a partner at Greene Espel PLLP. He often works with experts as he practices in the areas of constitutional litigation, governmental defense, business litigation, and appellate litigation.