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Posted by Laurie Gallagher | May 18, 2021 | 0 Comments


If you are evaluating a case, are drafting the complaint for a case, have just filed the complaint, or have been served with a complaint against your client, you will likely know early on if you will need to engage an expert witness for your case. 

At these early stages of pre-litigation and exchange of pleadings, is it too early to engage an expert witness?

The answer in all four scenarios is NO.  In fact, in at least three of those situations, it may be too late to reap all of the benefits of early engagement of your expert witness, or even too late to avoid sanctions.

In our next several blogs we will explore the TOP FIVE REASONS why early engagement is a strategic advantage.  This blog will address one of the most important reasons: how to avoid disqualification or sanctions caused by late disclosure.

Disqualifications and Sanctions

Federal Rules of Civil Procedure 26(a), (26e), and 37(c) provide for the automatic exclusion of the expert evidence (which, in many cases, means the exclusion of the expert) when the expert is disclosed or a report is filed after the date the court has designated.

While many courts are reluctant to sound the death knell for one side's entire case by excluding an expert, Rule 37 is “a self-executing, automatic sanction” meant to induce disclosure.  The standard is whether the delay was substantially justified or harmless.  But the party making the late disclosure bears the burden of establishing that the failure to disclose in a timely manner is substantially justified or harmless. Fed. R. Civ. P. 37(c)(1)

While the definition of “timely” varies widely among courts, especially in light of the potentially broad interpretations of “substantially justified” and “harmless”.  But one case has held that a report submitted three days after the deadline should be struck as the sanction for its untimely submittal. Martinez v. Costco Wholesale Corporation, 336 FRD 183 (S.D. Cal 2020).

At The Legal Expert Witness Network, we are the experts on early engagement of expert witnesses. 

We stand at the ready with our proprietary research methods gleaned from decades of experience as litigators to quickly identify the best candidates before your opponent engages them.  If you represent the plaintiffs in a case, you should have identified an expert witness or at least potential candidates before you file the complaint.  If you represent the defendant, you are already beginning the expert witness research process weeks after the plaintiff has had the opportunity to begin a search, so time is of the essence. 

It's never too early.  But it CAN be too late

Why take the chance when early engagement and timely disclosure prevents the issue?

Contact us today.


About the Author

Laurie Gallagher

LAURIE NEWMAN GALLAGHER, ESQ. Laurie Gallagher has over 35 years of experience providing legal research services to her colleagues in the legal profession.  She is personally involved in every expert witness research project, designing a protocol using the proprietary expert witness criteria she...


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