February 08, 2021 BY Patrick Ewing
Timely Disclosure of Expert Witnesses in the United States District Court for the Northern District of Georgia
The local rules for the Federal District Court for the Northern District of Georgia may provide a basis for the exclusion of a proposed expert disclosed by a plaintiff after the close of discovery. The Federal Rules of Civil Procedure set forth and govern the procedures in all civil actions and proceedings in the United States district courts with the goal of to secure the just, speedy, and inexpensive determination of every action and proceeding. Fed. R. Civ. P. 1. Federal District Courts are permitted to adopt local rules that are binding on litigants and not inconsistent with the Federal Rule or other statutes. Fed. R. Civ. P. 83. Cohen v. Carnival Cruise Lines, Inc., 782 F.2d 923 (11th Cir.1986). In general, the federal rules require that experts be disclosed at least 90 days before trial or a case is to be ready for trial. Fed. R. Civ. P. 26(a)(2)(D). However, some courts do not set a trial date until after the close of discovery, making compliance impossible. See e.g. Ty, Inc. v. Inc., 353 F.3d 528 (7th Cir., 2003) (trial date set less for 90 days away precluded ability to disclose experts more than 90 days before trial). Where a trial date is not set, a court’s local rules may provide a basis for exclusion of an expert disclosed by a plaintiff after the close of discovery. For example, in the Northern District of Georgia, experts not disclosed within the discovery period have been excluded from testifying at trial.
RULES FOR TIMING FOR DISCLOSURE OF EXPERT OPINIONS
Federal Rule of Civil Procedure 26(a)(2)(D) states that absent a stipulation or court order, the identity and opinions of experts must be disclosed at least 90 days before the date set for trial or the case is to be ready for trial. A party that fails to provide the information required by Rule 26 may be precluded from use of that information or witness “unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Many courts do not set a trial date until after the close of discovery, and thus, there may be additional time to identify experts after the close of discovery based on the language of Rule 26(a)(2)(D). See Ty, Inc., supra, 353 F.3d at 533. (appellate court stated that trial should have been delayed opportunity to depose late identified expert and remanding on other grounds).
In the United States District Court for the Northern District of Georgia, the local rules require disclosure of experts before the expiration of the discovery period rather than the date for trial. Local Rule 26.2(C) states:
Any party who desires to use the testimony of an expert witness shall designate the expert sufficiently early in the discovery period to permit the opposing party the opportunity to depose the expert and, if desired, to name its own expert witness sufficiently in advance of the close of discovery so that a similar discovery deposition of the second expert might also be conducted prior to the close of discovery
Thus, where an expert is not disclosed until after the close of discovery, the local rule may provide a basis for exclusion of an expert’s testimony.
FAILURE TO ADHERE TO DEADLINES SET FORTH IN LOCAL RULES CAN RESULT IN EXCLUSION OF EXPERT TESTIMONY
The failure to timely disclose experts in accordance with the local rules can result in the exclusion of proffered expert testimony. APA Excelsior III, L.P. v. Windley, 329 F.Supp.2d 1328 (N.D. Ga. 2004). In APA, a case involving alleged financial issues with an acquisition of a company by the defendants, the plaintiffs did not name any experts during the discovery period. Id. The plaintiff received additional documents after close of discovery and requested permission from the court to designate two experts: the first to inspect and evaluate the defendant’s computer and backup files; and the second to resolve alleged discrepancies uncovered in the defendant’s computer files and documents previously produced. Id. The defendant responded that the plaintiff should not be permitted to obtain additional discovery through an expert and that the plaintiff failed to disclose experts within the discovery period as required by the local rule. Id. The court agreed with the defendant and denied the plaintiff’s request. Id. at 1338. The court reasoned that the plaintiffs’ failure to comply with the local rules and disclose an expert within this discovery period was not justified. Id. The court stated that the plaintiffs knew the case involved complex financial transactions and that the need for an expert should have been apparent during discovery. Id.
Exclusion of experts for failure to timely disclose opinions can result in summary judgment. Harper v. Overhead Door Corporation, 2009 WL 10666360, (N.D. Ga. July 15, 2009). In Harper, a products liability claim, the plaintiff alleged injuries that arose from when he stepped out of a revolving door. Id. at * 1. The plaintiff did not disclose his treating physicians as expert witnesses during the discovery period. Id. at *2. The court granted the defendant’s motion to exclude the testimony of the treating physicians regarding causation of the claimed injuries. Id. at *8. The court reasoned that the physicians’ opinions with respect to causation were properly categorized as expert opinions subject to the requirements of Fed. R. Civ. P. 26(2)(D) and Local Rule 26.2. Id. at *3-5. Without evidence of proximate causation, an essential element of a products liability claim, the court entered summary judgment in favor of defendant. Id. at *9 – 12.
Similarly, the court also struck a late disclosed expect in Reese v. Herbert, 527 F.3d 1253 (N.D., Ga., 2008), a case that involved alleged civil rights violations by a sheriff’s department. Id. at 1257-58. Twelve days before the close of discovery, the plaintiff identified a purported expert by name only but did not provide an expert report required by Fed. R. Civ. P. 26(a)(2)(B). Id. at 1264. After the close of discovery, the defendants moved for summary judgment and the plaintiff’s response included an affidavit from the purported expert. Id. at 1262. The defendants moved to strike the affidavit and the plaintiff responded that the expert’s affidavit could not have been disclosed earlier because the expert needed to review the transcripts of testimony from the criminal trial involving the plaintiff. Id. at 1263-64. The trial court ruled that there was no excuse for the untimely disclosure that violated Local Rule 26.2 and granted both the motion to strike the affidavit and the motion for summary judgment. Id. at 1262. The appellate court ruled that the decision to strike the expert’s affidavit was not an abuse of discretion, but ultimately reversed the grant of summary judgment on other grounds. Id.
Where a plaintiff fails to designate an expert before the close of discovery, Local Rule 26.2 for the United States District Court for the Northern District of Georgia may provide basis to challenge any late disclosed expert witness. The local rules for other courts may provide a similar tactical advantage in other situations. Accordingly, it is important for practitioners to review and comply with all local rules.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley