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Vaxiion Therapeutics, Inc. v. Foley & Lardner

July 2, 2008


The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge


On June 24, 2008, Plaintiff Vaxiion Therapeutics, Inc. (Vaxiion"), filed an Ex Parte Application for Clarification Re: Expert Designations and Reporting [doc. no. 77]. Defendant Foley & Lardner LLP ("Foley") filed its Opposition to Plaintiff's Ex Parte Application the next day, June 25, 2008 [doc. no. 78]. Neither the Application nor the Opposition contains any citations to supporting caselaw.

In Vaxiion's Application, Plaintiff seeks an order that "non-retained experts need not provide reports." (Ex Parte App. 4.) Alternatively, it requests that the Court identify which of Vaxiion's non-retained experts must provide a report. (Id.)

Vaxiion states that pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure, it identified the following nine non-retained experts: (1) Roger Sabbadini, Vaxiion Pharmaceuticals, (2) Matt Giacalone, Vaxiion Pharmaceuticals, (3) Scott Pancoast, Lpath Pharmaceuticals, (4) Neil Berkley, Mpex Pharmaceuticals, (5) Mark Surber, Aires Pharmaceuticals, (6) Stanley Malogy, Lpath Pharmaceuticals, (7) Kathleen McGuire, Vaxiion Pharmaceuticals, (8) William Gerhart, Versus Pharmaceuticals, and (9) Michael Rondelli, San Diego State Foundation. (Id. at 1-2.) Plaintiff did not provide expert reports for any of the nine non-retained experts. (Id. at 2.) It only submitted reports for "retained experts" in reliance on the provisions of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. (Ex Parte App. 3.) Vaxiion reads the rule too narrowly.

Federal Rule of Civil Procedure 26(a)(2) requires the disclosure of expert witnesses prior to trial. The rule states:

(A) In General

In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.

(B) Written Report

Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report -- prepared and signed by the witness -- if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.

Fed. R. Civ. P. 26(a)(2)(A)-(B). The Federal Rules of Evidence referred to in Rule 26(a)(2)(A) relate to testimony by experts in general (Rule 702), the basis of expert opinions (Rule 703), and the disclosure of facts or data underlying expert opinions (Rule 705). The written expert report must include the following: (1) a statement of all opinions the witness will express and the basis for the opinions; (2) the data considered by the witness in forming the opinions; (3) any exhibits used to support the opinions; (4) the witness's qualifications, including a list of all publications authored in the preceding ten years; (5) a list of all cases in the last four years in which the witness gave expert testimony; and (6) the amount of compensation received by the witness for their study and testimony. Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi).

Rule 26(a)(2) identifies two distinct groups of experts ---those who are "retained" to provide expert testimony at trial and those who are not. Sprague v. Liberty Mut. Ins., 177 F.R.D. 78, 81 (D.N.H. 1998). These two groups are differently situated, and accordingly, they are treated differently under the Rule.

One district court has defined a category of "percipient experts" as "persons who, because of their expertise, have rendered expert opinions in the normal course of their work duties or observations pertinent to the issues in the case," whereas "retained experts" are "persons specifically designated by a party to be a testifying expert for the purposes of litigation." Vines v. United States, 2008 U.S. Dist. LEXIS 23681, at *13-14 (E.D. Cal. Mar. 25, 2008). Witnesses serving in the role of retained experts are often provided with facts or opinions from outside sources, such as a party's attorney, which form part of the basis of their opinion testimony. See Sullivan v. Glock, Inc., 175 F.R.D. 487, 501 (D. Md. 1997).

"[W]here a witness will testify as to information acquired not 'in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit,' that witness need not be disclosed as an expert." Zarecki v. Nat'l R.R. Passenger Corp., 914 F. Supp. 1566, 1573 (N.D. Ill. 1996) (quoting Patel v. Gayes, 984 F.2d 214, 217 (7th Cir. 1993)). "[A] party need not identify a witness as an expert so long as the witness played a personal role in the unfolding of the events at issue and the anticipated questioning seeks only to elicit the witness's knowledge of those events." Gomez v. Rivera Rodriguez, 344 F.3d 103, 113-14 (1st Cir. 2003) (citing Patel, 984 F.2d at 217-18). For example, "treating physicians testifying only to the care and treatment afforded to a party were intended to be excluded from the requirements of Fed. R. Civ. P. 26(a)(2)(B)." Wreath v. United States, 161 F.R.D. 448, 449 D. Kan. 1995).

Similarly, in Matsuura v. E.I. du Pont de Nemours & Co., 2007 U.S. Dist. LEXIS 7891, at *16 (D. Haw. Feb. 2, 2007), the court was presented with fourteen "percipient expert witnesses" who were experts in the fields of law or science, but they were "involved in the underlying litigation or were eyewitnesses to certain scientific studies" related to the case, rather than being retained for the purpose of giving expert testimony at trial. The court analogized their positions to those of treating physicians who use their expertise in medicine to treat and diagnose patients, and who are allowed to testify at trial without giving expert reports. Id. The witnesses were ...

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