Business Law 13th Edition by Frank Cross, Kenneth Clarkson, Roger LeRoy Miller

Exercise 18

IN THE LANGUAGE OF THE COURT
SELYA, Circuit Judge.
* * * * * * * Rule 26 "is an integral part of the machinery devised to facilitate the management of pretrial discovery." Among other things, the rule provides for wide-ranging pretrial disclosures in connection with anticipated expert testimony. At its most basic level, the rule obligates a party who wishes to offer expert testimony to disclose "the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." In the case at hand, the plaintiffs seasonably [within a reasonable time period] complied with this identification requirement, naming Gordinier as a potential expert witness regarding causation. [Emphasis added.]
Other, more stringent disclosure requirements pertain to a witness who is "retained or specially employed to provide expert testimony in the case or... whose duties as the party's employee regularly involve giving expert testimony." The proponent of a witness falling into this subset must submit to the opposing party "a written report containing, [among other things,] detailed information as to the qualifications and intended testimony of the witness."
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As the text of Rule 26(a)(2)(B) makes plain, the rule covers two types of experts: (i) "retained or specially employed" experts who meet certain criteria and (ii) employees of a party who meet certain criteria. Because there is no suggestion that Gordinier was regularly employed by the plaintiffs, the lens of our inquiry narrows to whether he was "retained or specially employed."
The circumstances suggest that he was not. For one thing, there is no evidence that Gordinier was a person who held himself out for hire as a purveyor of expert testimony. For another thing, there is no evidence that he was charging a fee for his testimony.
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).
DECISION AND REMEDY The U.S. Court of Appeals for the First Circuit held that Gordinier was not the type of expert witness for whom a report was required. Therefore, the court reversed the district court's judgment and remanded the case for a new trial.
THE LEGAL ENVIRONMENT DIMENSION?Why can only an expert testify about the source of a bedbug infestation?
THE ETHICAL DIMENSION?Is it fair to require plaintiffs who hire expert witnesses to pay for and submit written reports that specify what the experts will say at trial? Why or why not?