Procedural Query
In federal court, an expert may not testify to opinions not within the scope of his or her report, as supplemented from time to time.
Typically, pretrial schedules call for plaintiffs to submit their reports first, then defendants. Sometimes courts schedule a round of rebuttal reports by plaintiffs, or by both parties. But not always.
May a plaintiffs' expert testify on direct examination at trial, then, about the criticisms raised by defendants' experts, without first having filed a supplemental or rebuttal report of his or her own addressing the criticisms? How about cross-examination?
A literal application of the rules and received procedural platitudes would suggest the following: No commenting, during direct, on the opposition's report (because the plaintiffs' original report didn't cover that); free rein for defense counsel on cross (because the rule requiring reports is there to prevent surprise, and defense counsel can waive the protection); and free rein on redirect, if defense counsel open the door.
But that protocol might be thought unfairly asymmetrical, if it routinely permits defense experts to comment on plaintiffs' experts during direct, but not vice-versa. Of course, there's some inherent asymmetry built into the sequencing of reports, and plaintiffs could perhaps protect themselves through supplementation. Still, it's quite an advantage, isn't it, if defense counsel can choose whether to open the door for a critique from a plaintiffs' expert, or lay low?
If defense counsel chooses to lay in the weeds, may he or she then launch an ambush during closing argument, decrying the failure of the plaintiffs' expert to utter a single syllable rebutting the defense expert's attack?
Does it help to cure the asymmetry, that a plaintiffs' expert's response to any pretrial Daubert challenge may count as a supplemental report?
We are curious about whether there's decisional law on point, and on what people perceive the actual practice in federal court to be, and about people's opinions of what it should be.
Thoughts?
Typically, pretrial schedules call for plaintiffs to submit their reports first, then defendants. Sometimes courts schedule a round of rebuttal reports by plaintiffs, or by both parties. But not always.
May a plaintiffs' expert testify on direct examination at trial, then, about the criticisms raised by defendants' experts, without first having filed a supplemental or rebuttal report of his or her own addressing the criticisms? How about cross-examination?
A literal application of the rules and received procedural platitudes would suggest the following: No commenting, during direct, on the opposition's report (because the plaintiffs' original report didn't cover that); free rein for defense counsel on cross (because the rule requiring reports is there to prevent surprise, and defense counsel can waive the protection); and free rein on redirect, if defense counsel open the door.
But that protocol might be thought unfairly asymmetrical, if it routinely permits defense experts to comment on plaintiffs' experts during direct, but not vice-versa. Of course, there's some inherent asymmetry built into the sequencing of reports, and plaintiffs could perhaps protect themselves through supplementation. Still, it's quite an advantage, isn't it, if defense counsel can choose whether to open the door for a critique from a plaintiffs' expert, or lay low?
If defense counsel chooses to lay in the weeds, may he or she then launch an ambush during closing argument, decrying the failure of the plaintiffs' expert to utter a single syllable rebutting the defense expert's attack?
Does it help to cure the asymmetry, that a plaintiffs' expert's response to any pretrial Daubert challenge may count as a supplemental report?
We are curious about whether there's decisional law on point, and on what people perceive the actual practice in federal court to be, and about people's opinions of what it should be.
Thoughts?
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