Many cases are won or lost on expert opinions. Expert retention is a subtle art, often representing one of the more significant and challenging investments a party makes in a litigation. Volumes have been written on how attorneys should work with experts, how experts should be prepared, and how experts should provide their opinions during a lawsuit. Though the propriety of expert opinions and the methodologies they employ receive most of the attention—ask any lawyer or judge about Daubert or Frye, then brace yourself—what gets less consideration is the issue of when an expert opinion or report can be changed or supplemented. In the previous two years, the Southern District of Florida has addressed this topic in a manner that should serve as a warning to many litigants and their counsel.

Federal Rule of Civil Procedure 26 requires that “[a] party must make [expert witness] disclosures at the times and in the sequence the court orders.” An expert's report “must contain a complete statement of all opinions the witness will express and the basis and reasons for them,” as well as “the facts or data considered by the witness in forming them.” Rule 26(e) imposes a duty on an expert to supplement her report “in a timely manner if the party learns that in some material respect the disclosure … is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” However, the ability to supplement or correct an expert opinion is not without exception, and it does not allow parties to be reactive in litigation or skirt court-ordered deadlines.

The Eleventh Circuit Court of Appeals “has been unequivocal … that a 'party cannot abuse Rule 26(e) to merely bolster a defective or problematic expert witness report.'” See Goins v. Carnival, 2017 U.S. Dist. LEXIS 219151, *4 (S.D. Fla. March 3, 2017). In Goins, Florida's Southern District again echoed that it is within a federal court's discretion to sanction a party for the failure to comply with expert disclosure obligations. In that case, the court struck a supplemental expert report because it was served three months after the expert disclosure deadline and within 24 hours of the expert's deposition. The party disclosing the supplemental expert opinion cited to lingering discovery disputes and delayed witness depositions as the basis for supplying a supplemental report, but the court rejected those explanations as insufficient. The court observed the expert disclosure requirements of Rule 26 are designed to provide parties a reasonable opportunity to prepare for effective cross examination and, if necessary, arrange for expert testimony from other witnesses. A more recent case illustrates what can happen when a party attempts to label an initial opinion as a “supplemental” one.

In Tessina Holdings Pty. v. Trend, S.P.A., 2018 U.S. Dist. LEXIS 171017 (S.D. Fla. Oct. 1, 2018), the Southern District Court encountered a more extreme version of the facts in Goins. There, the defendants had initially submitted a three-page rebuttal report that the court agreed was akin to “a notice of appearance for an expert,” largely because it provided no substantive analysis or calculations at all and was, in essence, a mere placeholder. Ten months later, at the rebuttal expert's deposition on the final day of discovery, the rebuttal expert offered what was labeled as a “supplemental report” that, for the first time, contained analysis and an opinion. The expert also testified that she was not given any documents to review until nearly nine months after her initial “report.” Following a hearing and detailed briefing on the issue, the magistrate judge recommended that the “supplemental” report be stricken and the opinions be excluded, ruling that Federal Rule 26 had been violated and that the delays were neither justified nor harmless under Rule 37.

While the striking of an expert report is a serious step and courts have discretion on the issue, there are some clear guidelines on how to avoid being left without an expert opinion. While it may seem obvious, timely seek an extension of time if your expert requires more time to investigate the facts and review bona fide documents that are legitimately necessary to render the expert opinion. If it becomes necessary to supplement the expert report at a later date, do so as expeditiously as possible in order to provide the other side with sufficient notice. An opposing party will need adequate time to analyze a supplemental report and confer with their own expert before discovery closes, and this is a significant factor for a court's determination on whether or not a supplemental report is prejudicial. You and your client will be thankful if you properly mind your expert.

Francesca Russo is a partner with the Miami intellectual property law firm of Espinosa Martinez. She may be reached at [email protected].

Robert R. Jimenez is an associate with the firm and may be reached at [email protected].