Expert Exclusion

How do you to exclude the adverse expert’s testimony if your adversary did not adequately disclose the expected testimony and its basis?

In some respects, it is a matter of whether the court looks only to Rule 26, or looks only to Rule 37, or instead looks to the inherent power of the court to punish an attorney for bad faith. Whether the trial court can exclude testimony of an expert as a sanction for failure to adequately disclose the expected expert testimony is a question that courts answer by following through three different paths, only one of which may be available to you in your case. Even though you may be an experienced trial attorney, you probably should take another look at your particular jurisdiction’s opinions on the subject. You may be surprised.

In a nutshell: the gut reaction of most trial attorney, and perhaps most trial judges, is to have the expert’s testimony excluded as a Rule 37 sanction for failure to respond adequately to discovery requests. Yet some federal courts and some state courts would disagree that the sanctions route is available. They take the position that the inherent sanctioning power of the court is only available if there is either:

  • a specific finding by the trial court of “bad faith;” or
  • if the requesting attorney has previously obtained a court order requiring supplementation of the complained of inadequate discovery response.

A recent North Dakota case shows the different path so well — and with citations by the concurring Justice — that we decided to quote long parts of the opinion below.

Perius v. Nodak Mutual Ins. Co., 2012 ND 54 was a situation where the responding attorney did not provide an adequate statement of the expected testimony of an expert. The majority opinion found that there is an inherent power for the trial court to exclude testimony under Rule 37 for discovery abuse.

Following is the critical part of the majority opinion in Perius.

As highlighted by the case’s procedural history, Perius was aware that his expert disclosures were insufficient, and failed to supplement his responses despite his duty to do so. See N.D.R.Civ.P. 26(e)(2)(B). The district court did not abuse its discretion in excluding Dr. Blowers’s expert testimony as a discovery sanction. See Wolf, 1997 ND 240, ¶ 17, 573 N.W.2d 161.

[¶10] Rule 26(e), N.D.R.Civ.P., requires a party to supplement or correct its response to an interrogatory “in a timely manner if the party learns that in some material respect the response is incomplete or incorrect[.]” N.D.R.Civ.P. 26(e)(1)(A). The rule also requires a party to supplement its response about “the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person’s testimony.” N.D.R.Civ.P. 26(e)(2)(B). No sanction is specified under N.D.R.Civ.P. 37 for a party’s failure to sufficiently supplement interrogatories. See N.D.R.Civ.P. 37; Dewitz, 508 N.W.2d at 339. Therefore, the district court has discretion to determine an appropriate sanction for a party’s failure to supplement interrogatories and may exclude expert testimony that is beyond the scope of a party’s responses to interrogatories. Wolf, 1997 ND 240, ¶ 17, 573 N.W.2d 161.

Now, here is the critical parts of the concurring opinion. The concurring opinion takes the position that the trial court cannot do anything unless the discovering attorney has previously made a Rule 37 motion to compel disclosure [or unless there is a finding of bad faith (which cannot be made if the responding attorney is just sloppy and ignorant).]

However, legal scholars have pointed out that “[w]hen an appropriate sanction for a specific abuse exists under the Rules, a court may not resort to its inherent sanctioning power but must use the sanctions available under the Rules.” 6 James Wm. Moore et al., Moore’s Federal Practice ¶ 26.06[2] (3d ed. 2011); 8B Charles Alan Wright et al., Federal Practice and Procedure § 2282, at 422 (3d ed. 2010) (noting that the United States Supreme Court in Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 207 (1958), made it clear that it is ordinarily inappropriate to look beyond the clearly delineated procedures of Rule 37 for the imposition of sanctions in the discovery context).

[Paragraphing supplied by this editor for purposes of making it clear that a second thought is being stated here by the Justice.] ]The Court of Appeals for the Second Circuit requires “a finding of bad faith for the imposition of sanctions under the inherent power doctrine. That bad faith must be shown by (1) ‘clear evidence’ or (2) ‘harassment or delay or . . . other improper purposes.'” DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124, 136 (2d Cir. 1998) (citations omitted).

[¶30] Rule 37, N.D.R.Civ.P., is patterned after Rule 37 of the Federal Rules of Civil Procedure. Rule 37, Fed.R.Civ.P., “establishes the mechanisms by which Rules 26 to 36 can be made effective.” 8B Charles Alan Wright et al., Federal Practice and Procedure § 2281, at 410 (3d ed. 2010). The general scheme of Rule 37, Fed.R.Civ.P., is that “ordinarily sanctions can be applied only for a failure to comply with an order of the court.” Id. at § 2282, at 416. “While Fed.R.Civ.P. 37(b) requires that a court order must be in effect, and then violated, as a prerequisite for the imposition of sanctions thereunder, no such requirement exists under Rule 26(e).” Id. at 417 n.1 (quoting Thibeault v. Square D Co., 960 F.2d 239, 245 (1st Cir. 1992)). When Rule 26(e), Fed.R.Civ.P., is flouted, the court possesses the power to impose a sanction without first issuing an admonitory order. Id.; see Fed.R.Civ.P. 37(c)(1); N.D.R.Civ.P. 37; Dewitz by Nuestel v. Emery, 508 N.W.2d 334, 339 (N.D. 1993). However, under Rule 37(a)(4), Fed.R.Civ.P., a party must first obtain an order to compel an answer that is not evasive or incomplete and it is only a violation of that order that is punishable under Rule 37(b)(2). See Wright, supra, at § 2282, at 419 n.3 (citing Chrysler Corp. v. Carey, 186 F.3d 1016 (8th cir. 1999)).