An expert who has been retained to analyze evidence and draft a report for use in litigation is generally not permitted to give testimony and express opinions beyond the contents of the report. There are sound legal and practical reasons for this limitation. This article examines a recent case illustrating this point and offers recommendations for how to avoid the court ordering the exclusion of expert evidence for failure to remain within the confines of the report. 

The Case

In McNally v. Riis, 2020 WL 209141 (US District Court, S.D. California), a federal civil case, the parties filed pre-trial motions wherein they sought to limit the evidence that could be presented at trial. This article focuses on the plaintiff’s motion to limit expert forensic video analysis evidence proposed to be led by the defendant. Surveillance video from the San Diego Metropolitan Transit System captured the incident in question. The defendant’s expert analyzed the MTS video, which had been converted from its original format to a “.wmv” file. The judge noted that the expert did not examine the original video. The expert’s report dealt solely with the converted video and problems associated with the conversion, not the original video itself. Even though it was not part of the expert’s report, the defendant wanted the expert to be able to testify as to why he believed the original video was not scientifically reliable, including opining on how the reduced frame rate made it difficult to properly interpret the events depicted. 

The plaintiff argued that the proposed evidence about the original video should be excluded because the expert’s report only dealt with the converted video. Pursuant to Federal Rules of Civil Procedure 26(a)(2)(B)(i), expert reports must contain “a complete statement of all opinions the witness will express and the basis and reasons for them.” As a result, the plaintiff argued that the defendant’s expert testimony must be limited to the converted video and further that since the plaintiff was only tendering the original video at trial, the expert’s evidence would not assist the trier of fact. 

The Court ruled that the defendant’s proposed expert evidence regarding the original video was excluded. The expert did not address the original video in his report and therefore allowing the expert to opine beyond the contents of his report would not only be contrary to the express provisions of the Federal Rules of Civil Procedure, it would also be highly prejudicial to the plaintiff, who would have no opportunity to review and rebut the evidence. 

Case Commentary

The situation that arose in this case may have arisen because the defendant’s attorney decided to ask questions on a topic that was beyond what the expert had been retained to address. In that scenario, it was the attorney who was in error rather than the expert. Alternatively, the expert simply did not address his mind to the original video, which seems unlikely. Either way, trial fairness dictates that attorneys cannot ambush opposing counsel with expert evidence that is not included in the expert’s report. Counsel are obliged to fully disclose the expert evidence they intend to present and must do so in the context of the expert’s report. Legally and practically, the ruling in this case is sound. It should serve as a reminder to expert witnesses that the full extent of their work and proffered opinions must be fully disclosed in the expert report. This case should also serve as a reminder to counsel to fully canvas with the expert the work that should be done and the full range of issues upon which the expert may be expected to opine. Whatever the cause for the communication failure, it is ultimately the client who suffers when evidence is excluded. 

Recommendation

Counsel and the expert need to fully explore what issues need to be addressed, including contemplating the evidence of the opposing party, before the expert completes the analysis and finalizes the report. Attorneys often do not understand all of the work the expert should undertake and are prone to ask questions at trial that should have been addressed long before entering the courtroom. Proper communication between the attorney and the expert in advance of the completion of the expert report should minimize the likelihood of obtaining a ruling such as the one that was delivered in McNally v. Riis.