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Experts

In order to provide a standard procedure that accomplishes the aims of Federal Rule of Civil Procedure 26 and simplifies pre-trial motions, the following procedures are to be followed unless otherwise ordered by the Court:

1. All persons presenting testimony under Federal Rule of Evidence 702 must be disclosed pursuant to Federal Rule of Civil Procedure 26(a)(2)(A). See Musser v. Gentiva Health Servs., 356 F.3d 751, 756-58 (7th Cir. 2004).

2. Disclosures must be made within the time limit set for disclosure of Rule 702 opinion witnesses (or experts) in the scheduling order or, in the absence of an order, within the time periods prescribed in Rule 26(a)(2)(C).

3. The Rule 26(a)(2)(A) disclosure must specifically designate the witness as a person who may give testimony under Federal Rule of Evidence 702, 703, and/or 705. Even if the witness is not subject to the report requirement of Rule 26(a)(2)(B), the Rule 26(a)(2)(A) identification disclosure must include a written statement containing all Rule 702 opinions to be offered by that witness and the bases for those opinions in such a manner as to permit the opposing party to consider whether to depose the witness, to challenge the witness’ qualifications or opinions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), or to retain rebuttal opinion witnesses. See Musser, 356 F.3d at 757-58.

4. Please keep in mind that “[d]isclosing a person as a witness and disclosing a person as an expert witness are two distinct acts.” Musser, 356 F.3d at 757.

5. Rule 26(a)(2)(B) requires a written report from certain categories of witnesses --- namely, witnesses who are retained or specially employed to provide expert testimony or employees of a party whose duties regularly include giving expert testimony. If a witness falls within the scope of Rule 26(a)(2)(B), the witness must comply fully with all of the report requirements of that Rule.

6. A treating professional, including a physician, nurse, psychologist, or similarly situated witness, must be disclosed pursuant to Rule 26(a)(2)(A) in order to present testimony under Rule 702. See Musser, 356 F.3d at 756. A treating professional is not considered a retained expert for purposes of Rule 26(a)(2), and thus need not submit a report, if the treating professional’s testimony (a) is based on observations made during the course of treatment, (b) was not “acquired or developed in anticipation of litigation or for trial,” and (c) is based on personal knowledge. See Zurba v. United States, 202 F.R.D. 590, 591 (N.D. Ill. 2002). In other words, it is only when the treating physician gives opinions beyond the scope of the physician’s own observation and treatment that the physician is considered a “retained” expert for purposes of Rule 26(a)(2)’s report requirement. Id. at 592. Thus, the fact that a treating physician proposes to offer opinion testimony on prognosis, causation, or permanency of injuries does not automatically render the physician a retained expert for Rule 26(a)(2) purposes. Id. However, to the extent that a treating physician’s proposed testimony – regardless of the specific subject of the testimony (i.e., prognosis, causation, permanency, etc.) – “goes beyond his personal involvement in the facts of the case and giv[es] an opinion formed because there is a lawsuit” (Griffith v. Northeast Illinois Regional Commuter Railroad, 233 F.R.D. 513, 518 (N.D. Ill. 2006)), a report will be required unless the party seeking to present the opinion testimony in question obtains leave of Court, in advance, to dispense with the report requirement because of “undue hardship” (id. at 519).

7. Compliance with Rule 26(a)(2) and this Court’s procedures set forth above is required before a Rule 702 opinion witness (or expert) may be designated as a trial witness in the final pretrial order.

8. Any motions challenging Rule 702 witnesses filed under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), must be filed at least sixty days prior to trial unless otherwise ordered by the Court.


Note: The court does not control nor can it guarantee the accuracy, relevance, timeliness, or completeness of this information. Neither is it intended to endorse any view expressed nor reflect its importance by inclusion in this site.
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