Expert-aganza ’17: Old CV’s & Deposition Histories

Non-retained expert disclosure requirements get far more attention on this blog, but occasionally a case proves that even retained expert disclosures are not always easy.  Both Nevada and federal rules require that the qualifications of a retained expert witness be part of a disclosure, along with a list of prior testimony.  Are there times when that information is disclosed, but inadequate?

In Carrillo v. B&J Andrews Enters., LLC the plaintiff disclosed an accident reconstruction expert who was deposed just a week before the scheduled discovery deadline.[1]  As to the CV and fee schedule that were included in plaintiff’s disclosure, the expert testified they “were approximately two and half years old and inaccurate at the time of disclosure.”  As to his list of prior cases in which he had been deposed or testified at trial, he admitted it “was approximately two years old at the time of disclosure. As a result, … the list did not include approximately 30-40 relevant cases from the immediately preceding two years before disclosure.”  The defendant moved to exclude the expert.

The court easily determined this information did not satisfy the disclosure requirements.  The harder question was what to do about it.  Plaintiff argued “the failure is substantially justified because the first time he learned of the deficiency was at the expert’s deposition and he immediately supplemented the information.”  That argument failed because the burden is on “the disclosing party to provide accurate, timely, and sufficient Rule 26(a)(2)(B) disclosures.”  The supplementation argument also failed because this was not new information that developed only after the disclosure, it was information that existed that simply was not disclosed.

Plaintiff also argued that exclusion was an overly severe remedy.  However, a “cursory review of cases just from the District of Nevada show several cases where this exact remedy has been applied.”[2]  Further, the failure to disclose was prejudicial.

[T]he obvious purpose for requiring a list of prior testimony is to enable opposing counsel to obtain prior testimony, eliminate unfair surprise to the opposing party, and to conserve resources. The court also concurs that an expert witness may not shift the burden of researching prior testimony to the discovering party by providing sketchy or inaccurate information.[3]

The facts of the case warranted exclusion and the motion was granted.

[1] No. 2:11-cv-01450, 2013 U.S. Dist. LEXIS 13358, 2013 WL 420401 (D. Nev. Jan. 31, 2013).
[2] Oliva v. National City Corp., 2010 U.S. Dist. LEXIS 56362,2010 WL 1949600 (D. Nev.) (striking experts for failure to provide accurate disclosures and supplemental information); Hicks v. Dairyland Ins. Co., 2009 U.S. Dist. LEXIS 76832, 2009 WL 2243794 (D. Nev.) (striking expert for failure to provide accurate list of prior cases); Elgas v. Colo. Belle Corp., 179 F.R.D. 296 (D. Nev. 1998) (striking expert for failure to provide a complete list of cases).
[3] (quoting Hicks v. Dairyland Ins. Co., 2:08-cv-01687, 2009 U.S. Dist. LEXIS 76832, 2009 WL 2243794 (D. Nev. July 23, 2009)).