Failure to Prepare Report Ruled 'Harmless'

by Robert Ambrogi - Editor
BullsEye Newsletter: May 2007

In what appears to be a case of first impression, the 7th U.S. Circuit Court of Appeals has ruled that two experts were not barred from testifying by their failure to prepare or sign their own reports, as required by the Federal Rules of Civil Procedure.

Instead, the defense lawyer prepared and submitted a letter, which identified the two medical experts she would call, described their anticipated testimony and included their curriculum vitae. Both experts later submitted affidavits adopting the substance of the letter.

"Under these circumstances," the 7th Circuit held, "the district court did not abuse its discretion by holding that any shortcoming in the defendants' disclosure was harmless."

The issue arose in a federal civil rights case against a Wisconsin police officer. The plaintiff, Debra Jenkins, alleged that the officer shot and killed her son in violation of his constitutional rights. After losing at trial, she appealed on various grounds.

Prior to the trial, the attorney for the defendants sent Ms. Jenkins' attorney a letter identifying two medical examiners as the expert witnesses she intended to call. The letter described their anticipated testimony and the basis for the opinions they would give. Attached to the letter were each expert's curriculum vitae.

Neither expert signed the letter. Both experts subsequently provided sworn affidavits adopting the contents of the letter.

Rule 26(a)(2) of the Federal Rules of Civil Procedure requires parties to disclose the name of any person the party may call to testify as an expert witness. When the potential witness is retained specifically to provide expert testimony, the disclosure must include a "written report prepared and signed by the witness."

Contending that the experts had not complied with Rule 26, Ms. Jenkins asked the district court to exclude their testimony. The district court denied her request, ruling that the experts' affidavits cured any defects in the report. When a new judge took over the case, Ms. Jenkins renewed her request. The new judge likewise denied her request.

On appeal, Ms. Jenkins argued that the district court erred when it permitted the two experts to testify. She asserted that the defendants had failed to provide an expert report that satisfied Rule 26.

In denying her appeal, the 7th Circuit noted that the purpose of the expert report, as described in the committee note, is to "set forth the substance of the direct examination." A party is barred from using evidence that it failed to disclose as required by Rule 26(a), unless the failure was harmless, the court said.

The 7th Circuit concluded that the district court did not abuse its discretion by permitting these experts to testify.

"With the exception of the physicians’ signatures, the letter substantially complied with Rule 26(a)(2)(B)," the court reasoned. "The letter stated the opinions to which the physicians would testify and the basis for those opinions, invited Ms. Jenkins' attention to the autopsy protocol which she already had received, disclosed prior testimony by [one expert] in federal court, and set forth the physicians' qualifications and publications in their respective curriculum vitae."

Further, the court said, the defendants cured the main defect in the expert report – the absence of the experts' signatures – when they submitted the experts' sworn affidavits adopting the contents of the letter.

The circuit court also ruled against Ms. Jenkins on her argument that the testimony of one of the two experts should have been excluded under Daubert. She contended the testimony was speculative, but the circuit found that the district court conducted a sufficient inquiry into the reliability of the testimony.

The case is Jenkins v. Bartlett, No. 06-2495 (7th Cir., April 23, 2007). The decision was written by Circuit Judge Kenneth F. Ripple, who was joined by Chief Circuit Judge Frank H. Easterbrook and Circuit Judge Richard A. Posner.

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