Tennessee Business Litigation Law Blog

In an opinion just handed down by the 6th Circuit Court of Appeals, the Court criticized the application of the Middle District of Tennessee's Local Rule regarding expert witness reports.  The Rule states:

"Expert witness disclosures shall be made timely in accordance with any order of the Court, or if none, in accordance with Fed. R. Civ. P. 26(a)(2). Expert witness disclosure statements shall not be supplemented after the applicable disclosure deadline, absent leave of Court. No expert witness shall testify beyond the scope of his or her expert witness disclosure statement. The Court may exclude the testimony of an expert witness, or order other sanctions provided by law, for violation of expert witness disclosure requirements or deadlines. ..."

Rule 39(c)(6)(d). 

In the case before the 6th Circuit, the Defendant's expert economist failed to state in his Rule 26 Report that he was relying on Generally Accepted Accounting Principles (GAPP) in arriving at his figures.  Counsel for the Plaintiff objected when this testimony was given at trial and, based on the local rule, the trial court excluded the economist's testimony.  Given that this evidence was a necessary part of the defendant's case, the Court proceeded to enter judgment as a matter of law against the defendant. 

In reversing the trial court's judgment, the 6th Circuit held that application of the local rule in this manner was inconsistent with the Federal Rule 89(a)(2),  which provides that "[a] local rule imposing a requirement of form shall not be enforced in a manner that causes a party  to lose rights because of a nonwillful failure to comply with the requirement."  The Court found that limiting an expert to simply reading from his written report at trial was inconsistent with the purpose of Rule 26(a)(2)(b).

Following this opinion, it is unclear whether the local rule itself is dead or whether the 6th Circuit's holding is limited to the Rule's strict application in this case.  One thing is for sure, attorney's practicing in the Middle District of Tennessee should be aware of this issue and its potential implications when preparing their cases for trial.

Read the full opinion in Thompson v. Doane here.

From our Tennessee Medical Malpractice law blog, here's a 2003 Court of Appeals ruling that the testimony of an opposing party's expert witness testimony - including an expert who testified and was subsequently withdrawn - is admissible at the summary judgment stage. At least on summary judgment, then, you can't ignore the testimony of an expert who falls apart in his or her deposition.

On Thursday of this week I am speaking for the Nashville Bar Association on the topic of "What You Should Ask Yourself When Working With an Expert Witness." The CLE is focused a number of concerns that civil litigators should consider in choosing what experts to work with and how to do so.

Next month, on December 20 and 21, Branham & Day is presenting our fifth annual Fundamentals of Civil Litigation seminar at the Nashville School of Law. The seminar is geared to providing practical tips to new lawyers throughout the civil lawsuit process - from opening the case, through discovery, and into trial. For more information or to sign up, see our website at www.branhamday.com.

The Sixth Circuit Court of Appeals has now ruled that all materials given to testifying expert witnesses must be disclosed, including attorney opinion and work product materials.  The case is Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006).  This is an important ruling that resolves what had been a point of conflict in our Circuit.

Read the opinion here and related commentary from the Day on Torts Blog here.

Law.com has an article on working with expert witnesses called: "The Seven Deadly Sins." In a nutshell, the article boils down to one simple but vital tip: make your experts respectable. Don't load them up with only the favorable facts and march them into court to get butchered on cross. Don't hire the cheapest person whose CV includes some passing reference to a field in your case (along with everything from accident reconstruction to airport security to marital counseling, just in case any of those might get the guy hired).

This is all good advice, but the most important rule is simple: Don't ignore your instincts. All of these "seven deadly sins" are common sense - a useful asset for a lawyer.

A question often arises regarding whether state or federal law is applicable when determining the compentency or qualification of an expert to give testimony. The 6th Circuit largely answered this question in 2002 with its decision in Legg v. Chopra, 286 F.3d 286. The Court noted the common proposition that in federal diversity actions, state law governs substantive issues and federal law governs procedural issues. Accordingly, rules of evidence are generally deemed rules of procedure, and therefore, the Federal Rules of Evidence, rather than state evidentiary laws, are held to apply in federal diversity proceedings. For this reason, the 6th Circuit categorically held that the admissibility of expert testimony is a matter of federal, rather than state, law.

However, the Court also noted a limited exception where state evidentiary law is intimately intertwined with a state substantive rule. In Legg for example, the Court held that the Tennessee medical malpractice competency statute is linked to the substantive issue of “standard of care” and that it therefore remains applicable in diversity actions. In cases such as this, both state and federal law may be applicable to different aspects of the admissibility determination.

Robert Chapman posts about a Mississippi case determining that a trial judge did not abuse his discretion in excluding an expert witness's testimony on lost profits. The Mississippi court's primary concern in Webb v. Braswell was that the both the lost profits themselves, and the expert testimony about them, were too speculative under Mississippi law. Specifically, the lost profits were on unplanted crops, which the court implied are inherently too speculative, and there was no proof that the business had ever been profitable in the past (to the contrary, it was apparently losing money). Because the existence of lost profits was too speculative, the trial judge did not abuse his discretion in excluding as unreliable the expert testimony of an agricultural economist as to the amount of lost profits.

For Tennessee's view on an economist's testimony as to lost profits, look to Waggoner Motors, Inc. v. Waverly Church of Christ. In Waggoner, Middle Section Court of Appeals Judge Koch went over Tennessee law on the degree of proof required for compensatory damages, including those for lost profits. Judge Koch also analyzed the requirements for expert testimony on lost profits, ultimately rejecting an economist's testimony because of flaws in the economist's methodology.

You can also take a look at this response to a motion to exclude an economist's testimony posted over at MedMalBlog.com.

In a lot of lawsuits, the quality of the expert witnesses will play the most significant role in determining the outcome of the case. If a plaintiff's expert on damages falls apart, for example, that plaintiff may simply be unable to even put on proof of the losses at trial. Good expert preparation, and preparation for examining the other side's experts, is imperative. Here's an article that goes over some of the nuts and bolts of working with experts. While fairly brief and written from the standpoint of Federal intellectual property litigation, the article nonetheless hits on several points to keep in mind each time you are selecting, disclosing, preparing, or deposing an expert witness. (Found via the Illinois Trial Practice Weblog.)