Federal Rule of Civil Procedure 26(a)(2) outlines two different sets of pretrial disclosure requirements, imposing more onerous requirements on “retained” than “non-retained” experts.  Relatedly, when non-retained expert witnesses offer opinions based on information obtained outside the scope of their personal involvement in the facts of the case, most courts require them to submit a full Rule 26(a)(2)(B) report.  See, e.g., Goodman v. Staples The Office Superstore LLC, 644 F.3d 817, 826 (9th Cir. 2011).  Thus, for example, a physician who provided care to a personal injury plaintiff is treated as a retained expert for disclosure purposes when he or she bases a causation opinion on materials provided by an attorney and reviewed as part of the litigation.  Some courts, taking this rationale a step further, have required all experts who opine on certain topics – for example, causation – to submit a full Rule 26(a)(2)(B) report.  See, e.g., Muzaffarr v. Ross Dress for Less, Inc., 2013 WL 3850848 (S.D. Fla. July 26, 2013).  But according to the Eleventh Circuit’s recent opinion in Cedant v. United States, — F.4th —, 2023 WL 4986402 (11th Cir. 2023), such rules invert the Rule 26(a)(2) analysis.

The Plaintiff in Cedant alleged that he was injured in an accident with a U.S. Postal Service truck.  The parties agreed that, under applicable Florida law, Plaintiff had to support his claim with expert testimony showing that the accident caused his harm.  He proposed to satisfy that requirement solely by offering testimony from several doctors who treated him after the accident.  The district court, holding that experts who offer opinions on causation must satisfy Rule 26(a)(2)(B)’s disclosure requirements (including, inter alia, a Rule 26 report) and observing that none of Plaintiff’s treating physicians had satisfied those requirements, excluded the experts under Rule 37(c)(1).  Then, because Plaintiff had no admissible expert testimony to support causation, the court granted Defendant’s motion for summary judgment.  Plaintiff appealed.

The Eleventh Circuit rejected the district court’s position that causation opinions can only be offered by experts who comply with Rule 26(a)(2)(B).  It reasoned that, although “this was not the first time a court adopted a content-based approach to Rule 26 . . . such purpose-based readings [cannot] overcome the text and history of Rule 26(a)(2).”  Rule 26(a)(2)(B) requires witnesses who are “retained or specially employed to provide expert testimony in the case” – i.e., “retained” experts – to prepare and sign a report that discloses, among other things, “a complete statement of all opinions the witness will express and the basis and reasons for them.”  In contrast, Rule 26(a)(2)(C) imposes less arduous disclosure requirements as to non-retained experts and calls on the party, not the expert, to make those disclosures.  As the Eleventh Circuit noted, this means that “an expert’s status as a retained witness depends on the original purpose of his retention.”

The Eleventh Circuit further supported its textual conclusion with a discussion of Rule 26’s history with respect to expert disclosure requirements.  The panel noted that, for decades after Rule 26 was amended in 1970, it contemplated no pretrial disclosure requirements at all for non-retained experts “whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.”  But, because district courts “often over-imposed the requirements” that applied to retained experts, Rule 26(a)(2)(C) was introduced in 2010 to expressly exempt non-retained experts from the more burdensome Rule 26(a)(2)(B) reporting scheme.  Rule 26(a)(2)(C) compensated for that exemption by adding “a more limited set of pretrial disclosure requirements for non-retained witnesses.”  But the 2010 Committee Notes made clear that courts “must take care against requiring undue detail” from non-retained witnesses who “have not been specially retained and may not be as responsive to counsel as those who have.”  To the Eleventh Circuit, this history supported the conclusion that “neither category of expert witnesses defined in Rule 26(a)(2) – retained or non-retained – has to do with the subject of the expert testimony.  Instead, the categories depend on when and why an expert witness was hired.”  Thus, for example, “whether a doctor is retained (or not) depends on whether she was hired to testify or to treat.”

Finally, the Eleventh Circuit noted that Rule 26 empowers parties to modify the disclosure requirements through written stipulation and courts to do so through orders or local rules.  The district court in Cedant, however, “set out a blanket policy that it said was mandated by Rule 26(a)(2)” rather than exercising its discretion to require more detailed disclosures.  Thus, it was an abuse of discretion to exclude the experts.  The Eleventh Circuit therefore vacated the summary judgment order.

It remains to be seen how much practical impact Cedant will have, both in the Eleventh Circuit and beyond.  Cedant prevents a court from categorically prohibiting non-retained experts from opining on certain topics.  But an expert who bases an opinion on information learned through litigation is a retained expert under Cedant’s analysis and must offer a full Rule 26(b)(2)(B) report, meaning that the same result will often be reached whether a court follows Cedant or the blanket rule that the district court in Cedant had applied.  And even under Cedant, a court has discretion to require experts who opine on causation to produce a full Rule 26(a)(2)(B) report.  As was the case before Cedant, litigants would be wise to support critical elements of their claims and defenses with testimony from a retained expert and not assume a court will allow a non-retained expert to supply what is needed.