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Editor: Colin Miller
Univ. of South Carolina School of Law

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Thursday, May 27, 2010

Your Expert('s) Advide: District Of Puerto Rico Finds No Expert Disclosure Problem In Bed Burning Case

Federal Rule of Civil Procedure 26(a)(2) requires the proponent of expert testimony to disclose the witness' identity, along with a written report that contains, among other things, a ‚Äúcomplete statement of all opinions the witness will express and the basis and reasons for them." As I noted in a recent post, "the sanction for noncompliance with this...rule is typically automatic and mandatory exclusion of the expert's testimony." But what requirements apply when a party wants to present the testimony of the opposing party's expert witness at trial? That was the question addressed by the United States District Court for the District of Puerto Rico in its recent opinion in Rosa-Melendez v. Invacare Corp., 2010 WL 1801789 (D.Puerto Rico 2010).

In Rosa-Melendez, Luis Rosa Rosa was a resident at an assisted living facility. His bed at the facility was made by Invacare, and one night the bed's electrical system began to burn the bed while he was lying in it. The bed eventually burst into flames, and Rosa Rosa eventually died as result of third degree burns he suffered from the fire. His son, Victor Colon Melendez, and others thereafter brought an action against Invacare and other defendants.

The plaintiffs then complied with Federal Rule of Civil Procedure 26(a)(2) in connection with the proposed expert testimony of their witness, Milton Castro. Milton, however, died before trial, and the plaintiffs planned to have his son testify in place of his father, but this substitution ended up not working out. The plaintiffs then disclosed their intention to rely instead on the expert opinion of Mr. Glen Robinson, the expert witness retained months earlier by the defendants.

The defendants countered that the plaintiffs failed to comply with the expert disclosure requirements of Federal Rule of Civil Procedure 26(a)(2) with regard to Robinson. The United States District Court for the District of Puerto Rico disagreed, finding that

First, plaintiffs' disclosed their desire to elicit Mr. Robinson's testimony at trial, albeit after numerous extensions of time, within the deadline set by the Court following the death of their former expert....Second, any danger of the kind of unfair surprise targeted by Rule 26 is minimal because Mr. Robinson has been a disclosed expert witness in this case for months....Further limiting any danger of surprise, plaintiffs have not indicated that they intend to elicit any testimony or opinion from Mr. Robinson that he has not already disclosed in his expert witness report....Accordingly, the Court does not find that plaintiffs have violated Rule 26 in any way sufficient to merit barring their use of Mr. Robinson's testimony at trial.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/05/opposing-expert--rosa-melendez-v-invacare-corp----fsupp2d------2010-wl-1801789dpuerto-rico2010.html

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