In a case against two Chicago police officers, the Seventh Circuit has held that the defendant failed to make a proper disclosure of the opinions of an expert witness.
The case was a false arrest case. The charges were dismissed by the Circuit Court of Cook County. The defendants sought to call an Assistant State’s Attorney as an expert witness. The court found that the witness did offer expert testimony and that the plaintiff was prejudiced by the testimony.
The court explained:
“Rule 26(a)(1) requires, among other things, the disclosure of the names and addresses of fact witnesses. Rule 26(a)(2) requires that expert witnesses be disclosed. That duty to disclose a witness as an expert is not excused when a witness who will testify as a fact witness and as an expert witness is disclosed as a fact witness. Musser, 356 F.3d at 757. This is a strict but well-founded requirement: “Knowing the identity of the opponent’s expert witnesses allows a party to properly prepare for trial.” Id. Without proper disclosures, a party may miss its opportunity 760*760 to disqualify the expert, retain rebuttal experts, or hold depositions for an expert not required to provide a report. Id. at 758. Because of these and other ways a party may be prejudiced by an improperly disclosed expert, the sanction is severe. Under Rule 37(c)(1) “exclusion of non-disclosed evidence is automatic and mandatory… unless non-disclosure was justified or harmless.” Musser, 356 F.3d at 758.
In this case, non-disclosure was neither justified nor harmless. Well before trial defendants announced that they wanted to have an ASA (or the law student who acted as one) testify about the significance of a no probable cause finding at Branch 50. But, crucially, the district court specifically ruled that it would not allow such testimony—it would not allow testimony that charges like Tribble’s are traditionally thrown out. Disagreement with that ruling or a belief that such testimony would be lay and not expert opinion (or no opinion at all) is not justification; at best, it’s just a misunderstanding of law. Musser, 356 F.3d at 757.
And non-disclosure was not harmless.”
The court explained that the testimony was prejudicial because the plaintiff was deprived of the opportunity to get testimony from a rebuttal expert.
Comment: the expert disclosure rules require that the lawyer exercise a great deal of judgment. He has to think about what testimony is needed and, critically, what “fact” witnesses are really giving expert testimony.
Edward X. Clinton, Jr.