Templin et al v. US, Sibbitt, and Montana Interventional & Diagnostic Radiology Specialists

EXPERTS: Plaintiffs’ expert’s report does not adequately explain “basis & reasons,” but Defendants failed to give opportunity to cure before moving to exclude per LR… motion to exclude denied, Plaintiffs may renew motion if they comply with LR… Molloy.

Plaintiffs move to exclude testimony of Gregory Moore on the basis that his report does not adequately explain the “basis and reasons” for his opinions. Rule 26(a)(2)(B)(i). The Court agrees, but the motion is denied.

An expert report should be sufficiently complete as to include the substance of what the expert is expected to give in direct testimony, and the reasons for such testimony. The report should offer the “how and why” of the results, not mere conclusions. Wilderness Dev. (D. Mont. 2009) (quoting Allgood (SD Ind. 2006); citing Salgado (7th Cir. 1998).

The rationale is “the elimination of unfair surprise to the opposing party and conservation of resources.” Wilderness (quoting Reed (D.NJ 1996); see also Rule 1 (The rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”)

Moore’s report contains a statement of facts, 5 sentences of opinion, and a complete void of reasoning in between. Contrary to Defendants’ argument, stating the facts is not the same as stating the reasoning; there is no “how and why” connecting the facts to the opinions.

Many of the LR are also designed to eliminate unfair surprise and conserve resources. LR 7.1(c)(1) states:

The text of the motion must state that other parties have been contacted and state whether any party objects to the motion. Parties that have not yet appeared in the action or whose default has been entered need not be contacted.

When this is followed, a party who believes that the opposing party’s expert report is inadequate must first contact the opposing party and express that concern before filing a motion to exclude. The parties can work out the dispute without having to involve the Court. Plaintiffs’ counsel filed the motion without contacting opposing counsel, thus failing to abide by the very principles he now advances. The bench trial was still several months away. Had Plaintiffs informed Defendants of their concern, Defendants might have supplemented without prejudice to Plaintiffs.

Plaintiffs may renew their motion if they comply with the LR. If they renew it and Defendants have offered to supplement, they must explain why supplementation would be prejudicial, particularly in light of the delay caused by this unsuccessful motion.

Templin et al v. US, Sibbitt, and Montana Interventional & Diagnostic Radiology Specialists, 40 MFR 149, 1/17/13.

Daniel Buckley (Buckley Law Office), Bozeman, for Plaintiffs; AUSA George Darragh; Carlo Canty, Evan Thompson, and Daniel Hoven (Browning, Kaleczyc, Berry & Hoven), Helena, for Sibbitt and MIDRS.