Supplemental Expert Reports, Part 2

Supplemental expert reports are another contentious topic. But when may they be properly issued? Colony Ins. Co. v. Colo. Cas. Ins. Co., 2014 U.S. Dist. LEXIS 72616 (D. Nev. May 28, 2014) discussed it.

Plaintiff timely disclosed an initial expert report. After that, the defendant “produced supplemental discovery in response to written discovery requests” and “additional documentation in relation to” a deposition. Plaintiff then issued a supplemental report from its initial expert. The defendant moved to strike the supplemental report arguing it was untimely because it was served after the initial and rebuttal expert disclosure deadlines.

With regard to expert reports, “the party’s duty to supplement extends to both information included in the report and to information given during the expert’s deposition.” “However, an expert’s duty to supplement under Rule 26(e) is not a right to supplement at will.”

A party may not use a supplemental report to disclose information that should have been disclosed in the initial expert report, thereby circumventing the requirement for a timely and complete expert witness report. Rather, supplementation under the Rule means correcting inaccuracies, or filling the interstices of an incomplete report based on information that was not available at the time of the initial disclosure.

“The time for supplementation is not limited to the discovery period.” Rule 26(e)(2) requires supplementation of expert reports to occur “by the time the party’s pretrial disclosures under Rule 26(a)(3) are due,” which is 30 days before trial unless otherwise ordered by the Court. Generally speaking, supplementation of an expert report is proper where it is based on new information obtained after the expert disclosure deadline and the supplemental report was served before the time for pretrial disclosures.

(citations, quotations and other things omitted).

Applied here the supplemental report was appropriate. It was both timely in that it was before the pre-trial disclosures and based upon information that was not available when the initial expert disclosures occurred.