Day on Torts
The Federal Court for the Middle District of Tennesse has a local rule on expert witness that has been criticized for decades. The rule provides as follows
"Expert witness disclosures shall be made timely in accordance with any order of the Court, or if none, in accordance with Fed. R. Civ. P. 26(a)(2). Expert witness disclosure statements shall not be supplemented after the applicable disclosure deadline, absent leave of Court. No expert witness shall testify beyond the scope of his or her expert witness disclosure statement. The Court may exclude the testimony of an expert witness, or order other sanctions provided by law, for violation of expert witness disclosure requirements or deadlines. …"
Rule 39(c)(6)(d). Not all of the judges enforced the Rule.
At trial, the Court permitted the expert to read his or her statement. On cross, the expert had to stay within the scope of his or her statement.
The Sixth Circuit Court of Appeals has reversed a judgment because the Court enforced the rule. In Thompson v. Doane Pet Care Co., No. 05-5377 (Dec. 15, 2006) the Court said that the local rule was inconsistent with the Federal Rules of Civil Procedure, including Rule 89(a)(2), which provides that "[a] local rule imposing a requirement of form shall not be enforced in a manner that causes a party to lose rights because of a nonwillful failure to comply with the requirement."
Is the local rule dead? It should be. It is one thing to enforce the Rule 26 disclosure rule. It is another to require everything to to be written out – including definitions of words, etc. – and then require the expert to read from the report which does little more than bore a jury to death.
Read the entire opinion here.