A recent Eighth Circuit opinion provides a great illustration of how the improper care and feeding of an expert witness can lead to “uncomfortable” circumstances.  That opinion, In re Levaquin Products Liability Litigation, 739 F.3d 401 (8^th Cir.  Jan. 7, 2014), involved a post-judgment motion (Rule 60(b)((2) & (3)) based on newly discovered evidence and fraud.  What was the newly discovered evidence?  - the post-judgment disclosure by one of the plaintiff’s experts that the expert, in fact, had not disclosed all the information that the defendant “repeatedly requested during discovery.”  In technical, legal terms that is . . . not a good thing. 

Of course, the back-story as to how and why this non-disclosure occurred, which is not discussed at any length in the Eighth Circuit opinion, presumably would be very interesting.  After all, even if the calculations and data did not have to be disclosed per Rule 26 (not addressed in the Eighth Circuit opinion) it is difficult to envision how they, at the very least, did not show up on a privilege log or some similar disclosure, especially if they were the subject of repeated requests in discovery.  Piquing even more interest, the defendant had argued in support of its Rule 60(b) motion that plaintiff actually had told the expert not to disclose the calculations and supporting data.  Without even noting the same in a privilege log . . .?  Then there is the $64,000 question:  how did this all come to light in the first place, especially post-judgment?  

Alas for all the inquiring minds, the standard of review in the appellate court rendered the answers to those questions, and doubtlessly many other details, not relevant (and thus, not addressed in the opinion).  Defendant plainly had sought relief unsuccessfully in the district court (D. Minn.).  The denial of defendant’s motion hardly could be too surprising given that “Rule 60(b) provides for ‘extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances.”  Id. at 404.  The affirmance by the Eighth Circuit was even less surprising.  Appellate courts will reverse district court rulings on Rule 60(b) motions only “for a clear abuse of discretion.”  Id.

Still, there is a hint in the Eighth Circuit’s opinion that . . . just perhaps . . . the defendant’s claims about the importance of the non-disclosed information might have been a bit exaggerated.  For instance, the non-disclosed information apparently related to a single paragraph in the expert’s report.  Whether that was the only paragraph that really mattered, or one of many important statements in the report, the Eighth Circuit decision does not say.  Also, the district court apparently was not convinced that the defendant was unable to recreate the expert’s calculation before trial.  The district court concluded that disclosure of the expert’s calculations, “even if material,” would not have led to a different outcome at trial because the expert’s “testimony was not ‘wholly undermined by the [new] calculation’” and the defendant’s liability “was based on the whole record.”  Id.  One can understand why the Eighth Circuit did not find a “clear abuse of discretion.”

More important, though, than speculating about the potentially colorful procedural history, entertaining though that may be, is the “moral” of the story.   In this age of exploding discovery, frequent spoliation fights, and the (at least seeming) rise of battles over expert testimony, litigants should err on the side of disclosure, especially with expert witnesses.  Experts typically are engaged when there is something fairly important on which they are to opine.  Thus a non-disclosure bearing on an expert’s testimony carries with it a real risk of providing the other side with a “free play.”  If the non-disclosing party should lose at trial, the non-disclosure related to their expert will not matter.  But what if the non-disclosing party should win at trial? 

True, in In re Levaquin Products Liability Litigation, the plaintiff was able to keep his judgment in the face of the defendant’s Rule 60 challenge – but why hand your opponent that weapon?