The parties must follow the following
procedures governing experts, unless otherwise ordered by the Court:
1. A party must disclose all persons
presenting testimony under Rule 702 of the Federal Rules of Evidence as
required by Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure. See Musser v. Gentiva Health Servs., 356 F.3d 751, 756-58
(7th Cir. 2004).
2. A party must disclose all experts
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 Rules
702, 703, 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 Pharms., 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 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.
A report is
required, however, if 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,” absent leave of Court based on “undue hardship.” Griffith v. Ne. Ill. Regional Commuter R.R.,
233 F.R.D. 513, 518-519 (N.D. Ill. 2006).
7. A party must comply with Rule 26(a)(2)
and this Court’s procedures set forth above before designating a Rule 702
opinion witness (or expert) as a trial witness in the final pretrial order.
8. Unless otherwise ordered by the Court, a
party must file any motions challenging Rule 702 witnesses under Daubert at least 60 days before
trial.