In 2010, Fed. R. Civ. P. 26 was amended to require full expert reports and other disclosures for retained expert witnesses, but only summaries of anticipated opinion testimony of non-retained experts. During the ensuing nine years, courts have weighed in on the distinctions between retained experts and non-retained experts. Even still, the distinctions are murky.
Under Fed. R. Civ. P. 26(a)(2)(B), a full expert report is required "if the witness is one retained or specially employed to provide expert testimony in the case." If the expert witness is non-retained then, under Rule 26(a)(2)(C), the party must disclose only "a summary of the facts and opinions to which the witness is expected to testify." According to the Advisory Committee, "[f]requent examples [of non-retained expert witnesses] include physicians or other health care professionals and employees of a party who do not regularly provide expert testimony."1
Indeed, treating physicians are perhaps the most common non-retained experts. Many courts have found that a treating physician is not considered a retained expert witness if the physician testifies about their medical treatment and other observations based on personal knowledge. However, when the "treating physician's testimony is based on a hypothesis, not the experience of treating the patient, it crosses the line from lay to expert testimony."2
Other examples of non-retained experts are scientists or engineers involved in the development of a drug or medical device. The key to determining whether a witness should be considered a retained expert is whether their opinions were developed based on the witness's personal involvement in the facts giving rise to the lawsuit or whether the witness developed their opinions for purposes of the lawsuit.
Differing Court Standards
A leading case on this issue is the United States Court of Appeals for the First Circuit's decision in Downey v. Bob's Discount Furniture Holdings, Inc.3 There, the plaintiffs alleged damages from a bedbug infestation, and the court considered whether the plaintiffs were required to produce an expert report for an exterminator, Edward Gordinier, who had inspected their home. The court found that Gordinier was not "retained or specially employed" by the plaintiffs because he did not "h[o]ld himself out for hire as a purveyor of expert testimony" and was not "charging a fee for his testimony."4 The court further stated:
In order to give the phrase "retained or specially employed" any real meaning, a court must acknowledge the difference between a percipient witness who happens to be an expert and an expert who without prior knowledge of the facts giving rise to litigation is recruited to provide expert opinion testimony. It is this difference, we think, that best informs the language of the rule.
Gordinier was "an actor with regard to the occurrences from which the tapestry of the lawsuit was woven." Put another way, his opinion testimony arises not from his enlistment as an expert but, rather, from his ground-level involvement in the events giving rise to the litigation. Thus, he falls outside the compass of Rule 26(a)(2)(B).
In an effort to blunt the force of this reasoning, the defendant contends that Gordinier should be considered "retained" because his inspection reports do not indicate that he deduced the cause of the infestation in the process of inspecting and treating the plaintiffs' premises. This contention misperceives both the law and the facts.
Interpreting the words "retained or specially employed" in a common-sense manner, consistent with their plain meaning, we conclude that as long as an expert was not retained or specially employed in connection with the litigation, and his opinion about causation is premised on personal knowledge and observations made in the course of treatment, no report is required under the terms of Rule 26(a)(2)(B).
Footnotes
1 Fed. R. Civ. P. 26, Committee Notes (2010).
2 Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1317–18 (11th Cir. 2011).
3 633 F.3d 1 (1st Cir. 2011).
4 Id. at 6.
THIS ARTICLE ORIGINALLY APPEARED HERE IN VOL. 12 NO. 3 OF PRO TE: SOLUTIO.
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