Recent Decisions on the FRCP Rule 26 Amendments Pertaining to Experts in Products Liability Cases

Abstract

RECENT AMENDMENTS Federal Rule of Civil Procedure 26 have led a proliferation of Motions Strike/Exclude Expert Testimony under Court's responsibility as a gatekeeper of information is be considered by a jury. Keeping apprised of recent rulings on these issues is key effectively using experts in defending mass tort claims. This article explores changes Rule 26 as they pertain experts in products cases, including how courts have handled discovery disputes involving experts following these amendments. I. Amendments Federal Rule of Civil Procedure 26 Pertaining Experts Effective December 1, 2010, Federal Rule of Civil Procedure 26 was amended protect draft expert materials and some attorney-expert communications from discovery. (1) New Rule 26(b)(4) works in conjunction with recently amended Rule 26(a) (2) govern discovery and disclosure from experts, respectively. With respect Rule 26(b)(4), amendments inserted two new sections, (B) and (C): (4) Trial Preparation: Experts. (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of form in which draft is recorded. (C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between party's attorney and any witness required provide a report under Rule 26(a)(2)(B), regardless of form of communications, except extent communications: (I) relate compensation for expert's study or testimony; (II) identify or data party's attorney provided and expert considered in forming opinions be expressed; or (III) identify assumptions party's attorney provided and expert relied on in forming opinions be expressed. Rule 26(a)(2)(B) now provides an expert report must contain facts or data considered by witness in forming [the opinion be expressed], while old Rule was more expansive and required report contain the data or other information considered by witness in forming [the opinions be expressed]. (2) Section 26(b)(4)(C) applies work-product protections communications between party's attorney and a expert. (3) The court in Sara Lee v. Kraft Foods highlighted an exception under Rule 26 (b)(3)(A)(ii), which allows discovery if the party seeking discovery 'has substantial need for materials prepare and cannot, without undue hardship, obtain their substantial equivalent by other means.' (4) II. Purposes of Rule 26 Amendments Under old Rule 26, interpretation by courts was inconsistent. (5) The majority applied a bright-line rule under which matters considered by an expert in formulating an opinion, including attorney work product, were automatically discoverable. (6) On other hand, a minority found disclosure of core work product a testifying expert did not affect protection accorded such information. (7) The majority interpretation created undesirable under old Rule. (8) Such effects included increased discovery costs and impeded effective communication between attorneys and their experts, apparently inducing some parties retain two separate sets of experts--one for consultation and another testify. (9) As Court in Sara Lee explained, advisory committee intended its change to 'limit disclosure material of a factual nature by excluding theories or mental impressions of counsel.' (10) According a Magistrate Judge in District Court of Colorado, Advisory Committee made clear that amendments are meant alleviate perceived uncertainty and rising costs associated with attorneys' limited interactions with their retained experts as a result of court opinions allowing discovery of an expert's draft reports and of all communications with counsel. …