Cajule Cedant v. United States
Citation75 F.4th 1314
Date Filed2023-08-04
Docket21-12661
Cited22 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12661
____________________
CAJULE CEDANT,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-24877
____________________
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2 Opinion of the Court 21-12661
Before JILL PRYOR, NEWSOM, and GRANT, Circuit Judges.
GRANT, Circuit Judge:
Federal Rule of Civil Procedure 26(a)(2) outlines two types
of pretrial disclosures for expert witnesses—one lengthy and one
more sparing. Without guidance from this Court, district judges
have split on when these witnesses must complete more detailed
Rule 26(a)(2)(B) written reports instead of the less onerous Rule
26(a)(2)(C) disclosures. Here, the district court said that any expert
testifying about causation had to follow Rule 26(a)(2)(B).
That was incorrect. According to the Rule’s text, what
matters is when and why an expert witness came to the case, not
the content of his testimony. Experts who are “retained or
specially employed to provide expert testimony” prepare extensive
Rule 26(a)(2)(B) reports, while others can submit a Rule 26(a)(2)(C)
disclosure. And whether an expert was “retained” hinges on how
she formed her relationship with the party she will testify for—not
on the content of the testimony. Here, because Cajule Cedant’s
doctors were initially hired to treat him rather than to testify, he
only needed to file the less burdensome disclosures.
But these baselines are subject to change, because Rule
26(a)(2) also empowers district courts and parties to adjust the
default rules. While the court could have exercised this discretion
and decided that experts testifying about certain topics needed to
file written reports, its ruling below was framed as a mandatory
application of the Federal Rules.
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For that reason, we vacate the order excluding Cedant’s
experts. On remand, the district court may evaluate his filings
under Rule 26(a)(2)(C) as written. Or it may modify those
requirements by issuing a new order requesting Rule 26(a)(2)(B)
reports for causation witnesses. If so, that decision will be an
exercise of the discretion built into Rule 26(a)(2) to adjust its default
requirements, which are defined by the relationship between a
party and its expert witnesses.
I.
Cedant sued the United States under the Federal Tort Claims
Act, seeking to recover for damages he allegedly suffered in an
accident with a U.S. Postal Service truck. Identifying “an analogous
state tort cause of action is required for an FTCA cause of action.”
Zelaya v. United States, 781 F.3d 1315, 1325 (11th Cir. 2015). Florida
law applies here, and in negligence cases like this one it requires the
usual showing of duty, breach, causation, and harm. See Williams
v. Davis, 974 So. 2d 1052, 1056 (Fla. 2007).
The focus in pretrial litigation was on that third element,
causation. Though Cedant incurred post-crash medical expenses
for the treatment of various non-visible injuries, the United States
insisted that his pain and other medical problems predated the
accident. To meet his burden to show that the crash caused his
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4 Opinion of the Court 21-12661
injuries, Cedant planned to rely on expert testimony from several
doctors who treated him after the crash. 1
The district court’s initial scheduling order set a deadline for
the parties “to exchange expert witness summaries/reports
pursuant to Federal Rule of Civil Procedure 26(a)(2),” and
communicated substantive instructions governing the exchange of
those expert materials. Those instructions included a requirement
that “treating physicians offering opinions beyond those arising
from treatment” must file a Rule 26(a)(2)(B) report. In support, the
order cited Muzaffarr v. Ross Dress for Less, Inc., an unpublished
district court opinion asserting that “opinions on causation”
categorically require Rule 26(a)(2)(B) reports. Muzaffarr v. Ross
Dress for Less, Inc., No. 12-61996-Civ, 2013 WL 3850848, at *1 (S.D.
Fla. July 26, 2013).
Cedant responded with what he called a “Rule 26(a)(2)(B)
Disclosure.” The filing included a disclaimer that no witness had
been “retained” or acquired expert knowledge for “the purpose of
litigation”; instead, each had formed “expert opinions as to the
cause of injury” in “the course of treating their patient.” The
disclosure was signed by Cedant’s counsel, and was accompanied
by a set of short letters prepared and signed by two of Cedant’s
doctors briefly outlining their opinions.
1 Both sides agreed that Florida law required expert testimony to show that
the crash caused his injuries.
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When the government suggested in an email exchange that
Cedant had not complied with all of Rule 26(a)(2)(B)’s
requirements, he moved to extend the filing deadline because his
treating physicians needed “additional time to complete their Rule
26(a)(2)(B) reports.” The district court denied the motion, but
Cedant still submitted an out-of-time “Amended Rule 26(a)(2)(B)
Disclosure,” which clarified that none of his expert witnesses
maintained a list of their prior testimony.
The government moved for summary judgment, invoking
Rule 37. That Rule bars, among other things, testimony from
expert witnesses who failed to comply with their Rule 26 pretrial
disclosure requirements unless that failure was “substantially
justified” or “harmless.” Fed. R. Civ. P. 37(c)(1). The government
argued that Cedant’s reports were untimely, and that because they
did not comply with Rule 26(a)(2)(B) in any event, he had offered
no evidence to prove that the crash caused his injuries. And
without evidence of causation, the government said, he could not
prove negligence. Cedant responded that he had submitted Rule
26(a)(2)(B) reports merely out of “an abundance of caution,” and
could not “be forced to file” any such report because his physicians
were “non-retained experts” who treated him after the accident.
He also moved for partial summary judgment on “liability.”
Rather than granting summary judgment to either side, the
district court instructed the parties to “suggest necessary
alterations to the Court’s scheduling order”—potentially giving
Cedant another chance to submit timely reports. But after the
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6 Opinion of the Court 21-12661
parties failed (for whatever reason) to offer any suggestion, the
court issued a revised order with a new deadline for expert witness
reports.
When the new due date arrived, Cedant submitted the same
reports as before (with the same disclaimer about non-retained
witnesses). He also filed separate Rule 26(a)(2)(C) disclosures for
his experts “in the alternative.” The government again moved for
summary judgment, contending that the written reports remained
inadequate under Rule 26(a)(2)(B) and that the alternative
disclosures likewise failed to satisfy Rule 26(a)(2)(C)’s
requirements. Cedant responded by claiming that he had
submitted redundant disclosures “in an abundance of caution,” and
that his filings complied with all the disclosure requirements of
Rule 26(a)(2)(C).
This time, the district court granted the government’s
motion for summary judgment. Both the “Court’s orders and
Florida law are clear,” it said, that “to prove causation, prognosis,
and/or future implications of the injury, the Plaintiff must satisfy
Rule 26(a)(2)(B)’s requirements.” The district court held that none
of Cedant’s filings satisfied those requirements, and conducted no
analysis on whether they satisfied Rule 26(a)(2)(C). Based on its
view that the reports were inadequate, the court excluded Cedant’s
experts under Rule 37(c)(1)—which left him with no admissible
evidence that the accident caused his injuries. Cedant now appeals
that decision, as well as the denial of his earlier summary judgment
motion.
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II.
Our review of the district court’s decision to grant summary
judgment is de novo, as is our review of the district court’s
interpretation of the Federal Rules of Civil Procedure. Peppers v.
Cobb Cnty., 835 F.3d 1289, 1295 (11th Cir. 2016); Pickett v. Iowa Beef
Processors, 209 F.3d 1276, 1279 (11th Cir. 2000). Here, the district
court’s grant of summary judgment stands or falls with the
propriety of excluding Cedant’s experts under Rule 37(c)(1), a
decision we review for abuse of discretion. See Prieto v. Malgor, 361
F.3d 1313, 1317 (11th Cir. 2004).
III.
This appeal requires us to explain a few things before
turning to the specifics of Cedant’s case: the baseline requirements
of Rule 26(a)(2); when those requirements apply by default; and
how courts and parties can modify them.
The bottom line is that Rule 26(a)(2) provides default rules
governing expert witnesses’ pretrial disclosures. These rules place
a greater burden on retained experts (who initially got involved in
the suit to testify) than they do on non-retained experts (who have
some independent connection to the facts underlying the suit).
And they focus “exclusively on whether the expert was retained,
not the nature of the activity that the expert engaged in to form
conclusions” or the ultimate subject matter of the testimony.
David H. Kaye et al., The New Wigmore: Expert Evidence § 4.2.2(b)
(3d ed. 2021). But the defaults are just that—defaults. Rule 26(a)(2)
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8 Opinion of the Court 21-12661
also offers discretion to those closest to the case—the district court
and the parties—to adjust the default pretrial disclosures, requiring
more or less information from expert witnesses.
A.
Expert witnesses are distinct from fact or “lay” witnesses in
several ways. To start, experts have fewer constraints on the scope
of their testimony, including the power to opine on matters of
scientific or technical concern based on otherwise inadmissible
facts or data that they did not personally observe. Compare Fed. R.
Evid. 701, with Fed. R. Evid. 702, and Fed. R. Evid. 703; see also Fed.
R. Evid. 705.
Because they can offer such uniquely powerful opinion
testimony—testimony that often cannot be rebutted without
expert testimony from the other side—expert witnesses are subject
to one of two disclosure requirements set out in Rule 26. A witness
who is “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” has significant pretrial disclosure
requirements under Rule 26(a)(2)(B). Those include a thorough
“written report” with six substantive parts, 2 unless “otherwise
2 These components are detailed, covering everything from the opinions the
expert will share to the compensation she will receive:
(i) a complete statement of all opinions the witness will express
and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
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21-12661 Opinion of the Court 9
stipulated or ordered by the court.” Fed. R. Civ. P. 26(a)(2)(B). For
all other expert witnesses, only a less onerous, two-part3 Rule
26(a)(2)(C) “disclosure” is required, again unless “otherwise
stipulated or ordered by the court.” Fed. R. Civ. P. 26(a)(2)(C).
The difference between written reports and disclosures is
meaningful. For one, a Rule 26(a)(2)(B) written report must be
“prepared and signed” by an expert, while a Rule 26(a)(2)(C)
disclosure may be submitted by a party on behalf of its expert. See
Fed. R. Civ. P. 26(a)(2)(B). And because written reports must
include the “basis and reasons” for “all opinions” offered by the
expert, plus the “facts or data considered by the witness,” they are
often sprawling compared to the short summary of opinions
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications
authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years,
the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and
testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B)(i)–(vi).
3 These are:
(i) the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected
to testify.
Fed. R. Civ. P. 26(a)(2)(C)(i)–(ii).
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10 Opinion of the Court 21-12661
required in a Rule 26(a)(2)(C) disclosure. Fed. R. Civ. P.
26(a)(2)(B)(i)–(ii).
The two reports that the government submitted here—
which no one disputes complied with Rule 26(a)(2)(B)—offer
excellent examples of what it takes to fulfill these requirements.
The government retained two professional experts whose primary
job appears to be preparing reports and testifying. The first expert
said that in a typical year he reviews 40–50 “medical legal matters,”
appears in about 25 depositions, and testifies at three to five trials.
The second expert charged $800 per hour to review records, plus
$1,100 to examine Cedant. Those numbers exclude the cost of
actually drafting a written report or preparing any necessary
exhibits. And both of the government’s experts reviewed at least
25 documents amounting to over 2,154 pages. What’s more,
professional experts like these do not often work alone—instead,
close cooperation between experts and attorneys is the norm.
“Rarely will an expert report satisfy the Rule 26(a)(2)(B) standard
unless counsel for the party retaining the expert was actively
involved in its preparation.” Don Zupanec, Expert Report—
Omission of Required Information—Supplementation, 24 No. 3 Fed.
Litigator 11 (2009).
Cedant’s doctors—and their relationship with his counsel—
are very different. The record reflects that Cedant’s attorneys were
not able to work closely with these experts, who had active medical
practices treating patients. In fact, the attorneys struggled to even
get a response—especially over the holiday season.
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The district court had to decide whether Cedant’s experts
had the same disclosure requirements as the government’s. On the
one hand, the relationships between the experts and the parties
who hired them were asymmetrical—the government’s experts
were primarily witnesses, while Cedant’s experts were primarily
treating physicians. But on the other, all of the experts were
testifying on the same subject—causation. The question, though,
is what matters under the Federal Rules.
B.
District courts in our Circuit have taken a range of
approaches to categorizing expert witnesses under Rule 26(a)(2).
Some have based their decisions on the Rule’s discussion of
retained versus non-retained witnesses. See, e.g., Torres v. Wal-Mart
Stores E., L.P., 555 F. Supp. 3d 1276, 1290 (S.D. Fla. 2021). Others
have imposed requirements based on the topic of an expert’s
testimony. See, e.g., Muzaffarr, 2013 WL 3850848, at *1. In resolving
this disagreement, we start with the text. First, the provision
setting out the more-detailed requirements:
Witnesses Who Must Provide a 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. The report must contain: [six detailed
components].
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Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). Witnesses governed
by Rule 26(a)(2)(B) are often called “retained experts” as a
shorthand. See, e.g., Goodman v. Staples the Off. Superstore, LLC, 644
F.3d 817, 827 (9th Cir. 2011). 4
Rule 26(a)(2)(C), in turn, is structured as a less arduous
catch-all for witnesses who fall outside the scope of Rule
26(a)(2)(B):
Witnesses Who Do Not Provide a Written Report. Unless
otherwise stipulated or ordered by the court, if the
witness is not required to provide a written report,
this disclosure must state: [two less-detailed
components].
Fed. R. Civ. P. 26(a)(2)(C). So if an expert witness does not need to
file a Rule 26(a)(2)(B) report, then a party does need to file a Rule
26(a)(2)(C) disclosure on her behalf. The shorthand for these
witnesses is “non-retained.”
The crucial textual inquiry, then, is what it means to be a
retained witness. The bare text of Rule 26(a)(2)(B) seems to present
two possibilities. Neither, we note, has anything to do with the
content of the expert’s testimony—both are focused on the
relationship between the expert and the party. It could be that an
expert is “retained” only if his connection to the litigation was,
4 Our use of the term “retained expert” in no way diminishes the application
of Rule 26(a)(2)(B) to a witness who is specially employed to provide expert
testimony, or whose duties as the party’s employee regularly involve giving
expert testimony. “Retained expert” is merely a convenient shorthand.
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from the beginning, as a paid expert witness. Alternatively, an
expert could become “retained” as soon as a party starts paying her
to be an expert witness—regardless of how she first became
associated with the case.
We think the former is the best reading of the Rule. A party
“retains” someone for a purpose, and that purpose is most naturally
defined at the beginning of the relationship. So Rule 26(a)(2)(B)
asks us to assess the initial reason the expert was hired. We look to
when an expert was “retained” or “specially employed” by a party
and evaluate whether that retention was “to provide expert
testimony in the case” or for some other purpose. Fed. R. Civ. P.
26(a)(2)(B).
No one is arguing for the alternative, hyper-literalist
approach—that any paid expert is necessarily a “retained” expert.5
And for good reason. Reading “retained” to cover any witness paid
5 Instead, the government cites Goodman, 644 F.3d at 826; Brooks v. Union Pacific
Railroad Co., 620 F.3d 896, 900 (8th Cir. 2010); and Meyers v. National Railroad
Passenger Corp. (Amtrak), 619 F.3d 729, 734–35 (7th Cir. 2010), to support its
arguments that expert witnesses need to file written reports when testifying
on causation. But both Brooks and Meyers were decided before Rule 26(a)(2)(C)
became effective in December 2010. See Amendments to Federal Rules of
Civil Procedure, 559 U.S. 1139(2010); Brooks,620 F.3d at 896
, 899 n.3; Meyers,
619 F.3d at 729. As a result, neither case deals with the boundaries between
Rule 26(a)(2)(B) and Rule 26(a)(2)(C). And rather than engage with the text,
Goodman simply bases its holding on Brooks and Meyers. 644 F.3d at 825–26; see
also Fielden v. CSX Transp., Inc., 482 F.3d 866, 871–72 (6th Cir. 2007) (rejecting
a rule that causation witnesses must always file expert reports even before
Rule 26(a)(2)(C) was adopted).
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in exchange for expert testimony would render Rule 26(a)(2)(C) a
virtual nullity, reserved for a hypothetical sliver of expert witnesses
who agree to testify without pay. That interpretation of “retained”
also wrongly focuses on a single term in isolation from the wider
scheme of the Federal Rules. The better approach is to remember
that “the meaning of a word depends on the circumstances in
which it is used. To strip a word from its context is to strip that
word of its meaning.” Biden v. Nebraska, 143 S. Ct. 2355, 2378 (2023)
(Barrett, J., concurring) (citation omitted).
Our textual reading—that an expert’s status as a retained
witness depends on the original purpose of his retention—is
supported by the Rule’s history. A study of Rule 26 over time
reveals that the distinction between those experts initially hired to
testify and those experts whose familiarity with the facts of a case
is more organic extends back to the very first Federal Rule on
pretrial expert disclosures.
The 1970 Advisory Committee—in response to the
increasing number of cases in which “expert testimony [was] likely
to be determinative”—enacted the first pretrial expert disclosure
requirements in Rule 26(b)(4). 1970 Committee Notes on Rule
26(b)(4). 6 Though the new Rule’s text discussed two categories of
experts, it really set out three. First, for any witness that a party
6 “Although not binding, the interpretations in the Advisory Committee Notes
are nearly universally accorded great weight in interpreting federal rules.”
Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005) (quotation
omitted).
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“expect[ed] to call as an expert witness at trial,” certain pretrial
disclosures were required upon request from the opposing party.
Fed. R. Civ. P. 26(b)(4)(A)(i) (1970). 7 Second, for an expert who was
“retained or specially employed” by a party but was “not expected
to be called as a witness,” disclosures were not generally required.
Fed. R. Civ. P. 26(b)(4)(B) (1970). Finally, the Committee Notes
clarified that any expert “whose information was not acquired 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” should “be treated as an ordinary
witness”—meaning that no pretrial disclosures were required.
1970 Committee Notes on Rule 26(b)(4). That last group of experts
sounds a lot like the one we have identified in the text of the current
Rule 26(a)(2)(C).
Over time, experience proved that even for experts who
needed to file pretrial disclosures, the information disclosed under
Rule 26(b)(4) was frequently “sketchy and vague.” 1993
Committee Notes on Rule 26(a)(2). In 1993, the Advisory
Committee broadened the scope of disclosure requirements by
7 The 1970 Rule explained that a party could be asked to
identify each person whom the other party expects to call as an expert
witness at trial, to state the subject matter on which the expert is
expected to testify, and to state the substance of the facts and opinions
to which the expert is expected to testify and a summary of the grounds
for each opinion.
Fed. R. Civ. P. 26(b)(4)(A)(i) (1970).
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recommending the modern Rule 26(a)(2)(B). Beyond expanding
the specific requirements for a written report, 8 the 1993
amendment abandoned Rule 26(b)(4)’s unworkable distinction
between experts that a party “expected” to testify or not. Instead,
the new Rule 26(a)(2)(B) applied to any expert “retained or
specially employed to provide expert testimony in the case”—
exactly like the current Rule. Fed. R. Civ. P. 26(a)(2)(B) (1993).
Even while increasing the reporting requirements for some
expert witnesses, the Advisory Committee emphasized that one
group still had no pretrial disclosure duties: experts who were not
“retained or specially employed to provide such [expert] testimony
in the case.” 1993 Committee Notes on Rule 26(a)(2). The new
Rule thus maintained the old distinction between retained and
non-retained experts, and the Advisory Committee even included
treating physicians as an example of experts who could be “deposed
8 Like the modern Rule 26(a)(2)(B), the 1993 amendment approach required
an expert to prepare and sign a written report. And the content of that report
was much closer to the current Rule than the 1970 approach:
The report shall contain a complete statement of all opinions to be
expressed and the basis and reasons therefor; the data or other
information considered by the witness in forming the opinions; any
exhibits to be used as a summary of or support for the opinions; the
qualifications of the witness, including a list of all publications authored
by the witness within the preceding ten years; the compensation to be
paid for the study and testimony; and a listing of any other cases in which
the witness has testified as an expert at trial or by deposition within the
preceding four years.
Fed. R. Civ. P. 26(a)(2)(B) (1993).
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or called to testify at trial without any requirement for a written
report.” Id.; see also, e.g., Prieto, 361 F.3d at 1319; Downey v. Bob’s
Disc. Furniture Holdings, Inc., 633 F.3d 1, 7 (1st Cir. 2011).
Equilibrium, however, was not yet reached. District courts
often over-imposed the requirements of Rule 26(a)(2)(B), even
when it was “straightforward” that a particular witness should not
be compelled to file a more detailed report. Fielden v. CSX Transp.,
Inc., 482 F.3d 866, 869–70 (6th Cir. 2007). Enter Rule 26(a)(2)(C),
which was introduced in 2010. For the first time, the text of Rule
26 explicitly clarified that all non-retained witnesses were
exempted by default from Rule 26(a)(2)(B)’s reporting
requirements. But to compensate, the new Rule also added a more
limited set of pretrial disclosure requirements for non-retained
witnesses. See Fed. R. Civ. P. 26(a)(2)(C).
Here too the Committee’s Notes support the “why-they-
were-hired” distinction between retained and non-retained experts.
Courts, the Committee said, “must take care against requiring
undue detail” from Rule 26(a)(2)(C) witnesses, “keeping in mind
that these witnesses have not been specially retained and may not
be as responsive to counsel as those who have.” 2010 Committee
Notes on Rule 26(a)(2)(C).
This history confirms our conclusion that neither category
of expert witnesses defined in Rule 26(a)(2)—retained or non-
retained—has to do with the subject of the expert testimony.
Instead, the categories depend on when and why an expert witness
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was hired. 9 A retained expert witness typically will get involved in
a case to provide expert testimony and will derive her knowledge
of the case from preparation for trial. A non-retained witness, on
the other hand, will have at least some first-hand factual awareness
of the subject matter of the suit. 10
Treating physicians, the type of expert witnesses involved
here, are first hired by their patients to treat rather than to testify.
But make no mistake—Rule 26(a)(2)(C) is not limited to treating
physicians. The expert’s job title, the subject or scope of his
testimony, and the way that he formed his opinions are irrelevant
inquiries for Rule 26(a)(2) purposes. The only question presented
9 This is true at least in the “retained” and “specially employed” contexts. Fed.
R. Civ. P. 26(a)(2)(B). An expert witness “whose duties as the party’s employee
regularly involve giving expert testimony” may have been hired for some
other purpose initially, but had his duties evolve into regularly providing such
testimony. Id. An example may be a scientist or engineer hired by a company
to develop new products, who transitions over time into an expert witness
routinely providing evidence when the company is sued.
10 For this reason, non-retained witnesses are sometimes called “hybrid”
witnesses, but the term is not used consistently. Compare Goodman, 644 F.3d
at 826, with Downey,633 F.3d at 7
. Wigmore, for instance, identifies several
distinct types of so-called hybrid witnesses—and a tendency for courts to
conflate them. See The New Wigmore § 4.2.2(b). While we used that term once
before the 2010 amendments creating Rule 26(a)(2)(C), see Prieto, 361 F.3d at
1318 n.7, we now think designating these experts as “non-retained expert
witnesses” better reflects the current text of Rule 26.
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by the Rule’s text is whether the witness was retained as an expert
or otherwise employed as described in Rule 26(a)(2)(B). 11
C.
As we have said, though, these default rules are not the end
of the story. The text of Rule 26(a)(2) offers flexibility to adjust the
initial rules for each category of experts: subsections (B) and (C)
each contain a caveat that reports and disclosures must include the
specified components “[u]nless otherwise stipulated or ordered by the
court.” Fed. R. Civ. P. 26(a)(2)(B)–(C) (emphasis added). So the
Rule explicitly empowers district courts (through orders or local
rules) and parties (through written stipulations) to modify the usual
disclosure requirements. Accord 1993 Committee Notes on Rule
26(a)(2). This allows for adjustments to the default rules as the
circumstances of a case demand.
11 The First and Ninth Circuits are in some tension on this point, with the
Ninth holding that Rule 26(a)(2)(C) applies only to the extent that a non-
retained witness forms expert opinions during the course of treatment. See
Goodman, 644 F.3d at 826. We agree with the First Circuit’s conclusion
rejecting that approach as atextual and concluding that non-retained witnesses
incur no additional disclosure requirements by supplementing their firsthand
knowledge with information supplied by others. See Downey, 633 F.3d at 7 &
n.3. Considering other data besides personal knowledge does not change the
relationship between a party and its witness. And the Federal Rules of
Evidence allow opinion testimony based on facts or data that “the expert has
been made aware of or personally observed.” Fed. R. Evid. 703. A non-
retained expert is no less of an “expert” for Rule 703 purposes just because he
filed a different pretrial disclosure than a retained expert. Cf. Downey, 633 F.3d
at 7; David H. Kaye et al., The New Wigmore: Expert Evidence § 4.2.2(b) n.73.1
(2023 Cumulative Supp.).
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20 Opinion of the Court 21-12661
Parties or courts thus may adjust the Rule 26(a)(2) defaults
to require either more or less information, from either retained
witnesses or non-retained witnesses. 12 Indeed, as the number of
parties and the extent of disclosures required by Rule 26(a)(2)
expanded, so did the discretion available to district courts to modify
those requirements. Compare Fed. R. Civ. P. 26(b)(4)(A)(ii) (1970),
with Fed. R. Civ. P. 26(a)(2)(B)–(C) (2010). In 1970, discretion
under Rule 26(b)(4) was limited and only went in one direction—
more disclosures. See Fed. R. Civ. P. 26(b)(4)(A)(ii) (1970). But
now, the Rule’s text contains no distinction between adding or
subtracting disclosure requirements. That expanded discretion
reflects that the district court managing the case is generally in the
best position to know what level of disclosure is appropriate for a
given expert in a particular lawsuit.
IV.
With this understanding of Rule 26, Cedant’s case is easily
resolved. Rather than anchor its approach to the text of the Federal
Rules, the district court believed that caselaw required treating
physicians to submit Rule 26(a)(2)(B) reports when testifying on
causation. See Muzaffarr, 2013 WL 3850848, at *1. But that
12 In addition to the discretion provided under Rules 26(a)(2)(B) and (a)(2)(C),
Rule 26(e) gives courts the power to order parties to supplement their expert’s
disclosures or written reports. Fed. R. Civ. P. 26(e)(1)(B). Parties may move
for the court to issue such orders to their counterparties. See, e.g., Griffith v.
Gen. Motors Corp., 303 F.3d 1276, 1282–83 (11th Cir. 2002). Additionally,
parties have a duty to supplement their disclosures with “additional or
corrective information” in certain circumstances. Fed. R. Civ. P. 26(e)(1)(A).
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21-12661 Opinion of the Court 21
approach is divorced entirely from the text of Rule 26(a)(2)—which
Muzaffarr did not engage with at all. 13
To be sure, this was not the first time a court adopted a
content-based approach to Rule 26. See, e.g., Goodman, 644 F.3d at
825–26. But while various motives for such purpose-based
readings can be presumed, none can overcome the text and history
of Rule 26(a)(2). And again, the default rules set out in the text can
be adjusted if appropriate, whether by local rules, court orders, or
the parties’ stipulations. But that’s not what happened here.
Rather than exercise its discretion to require more disclosures from
Cedant’s experts than the default rules do, the district court set out
a blanket policy that it said was mandated by Rule 26(a)(2).
That holding was wrong. Cedant was correct in arguing that
his experts were non-retained witnesses under Rule 26(a)(2); before
he filed suit, he had a doctor-patient relationship with each one as
they worked to treat his injuries. Cedant was also right that such
non-retained experts generally are not required to file a Rule
26(a)(2)(B) report simply because they are testifying on a specific
13 Instead, Muzaffarr attempts to justify its rule by citing Williams v. Mast
Biosurgery USA, Inc., which noted that the testimony of treating physicians can
“purport to provide explanations of scientific and technical information not
grounded in their own observations,” and that it should be treated as expert
rather than lay testimony when it does so. 644 F.3d 1312, 1317 (11th Cir. 2011).
But just because such physicians should be treated as experts does not mean
they must be treated as retained experts. Indeed, in Williams, the treating
physicians did not fully comply with Rule 26(a)(2)(B), and we noted that they
were nevertheless admitted. Id. at 1315 n.1.
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22 Opinion of the Court 21-12661
subject, such as causation. By default, non-retained witnesses like
these only need to file Rule 26(a)(2)(C) disclosures. Muzaffarr and
cases like it that assert otherwise are wrong on this point. See
Muzaffarr, 2013 WL 3850848, at *1. 14
When the district court wrongly believed Cedant’s experts
were required by law to submit full Rule 26(a)(2)(B) reports, it
applied an incorrect legal standard. Excluding those witnesses
under Rule 37 for their failure to file written reports was thus an
abuse of discretion. See Frazier, 387 F.3d at 1259. Because that Rule
37 exclusion was the sole basis for the summary judgment order,
we vacate it.
But we affirm the district court’s earlier decision to deny
Cedant’s motion for partial summary judgment on “liability.” To
show liability here, Cedant needed to prove all the elements of
negligence under Florida law: duty, breach, causation, and harm.15
Until the district court decides whether Cedant has any admissible
14 See also, e.g., Brown v. Best Foods, a Div. of CPC Int’l, Inc., 169 F.R.D. 385, 388
(N.D. Ala. 1996) (“Rule 26 focuses not on the status of the witness, but rather
the substance of the testimony.” (quotation omitted)); Singletary v. Stops, Inc.,
No. 6:09-cv-1763-Orl-19KRS, 2010 WL 3517039, at *8 (M.D. Fla. Sept. 7, 2010);
In re Denture Cream Prods. Liab. Litig., No. 09-2051-MD, 2012 WL 5199597, at
*4 (S.D. Fla. Oct. 22, 2012); Kondragunta v. Ace Doran Hauling & Rigging Co.,
No. 1:11-cv-01094-JEC, 2013 WL 1189493, at *12 (N.D. Ga. Mar. 21, 2013).
15 A motion for summary judgment on liability can be “partial” as parties
could, for example, still go to trial over the amount of damages owed. See,
e.g., Gen. Television Arts, Inc. v. S. Ry. Co., 725 F.2d 1327, 1329–30 (11th Cir.
1984).
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21-12661 Opinion of the Court 23
causation evidence, summary judgment on his behalf is
impossible. And Cedant’s argument that the motion sought
summary judgment only on breach and duty is belied by the
motion itself, which purports to prove “the negligence and
culpability of ” the government’s driver in “causing the Plaintiff’s
injuries.”
* * *
No rule requires any non-retained expert witness to file a
written report under Rule 26(a)(2)(B). And whether a doctor is
retained (or not) depends on whether she was hired to testify or to
treat. But district courts retain the discretionary power to tailor
disclosure requirements. Because the district court here
misunderstood that its power to require detailed submissions from
Cedant’s witnesses was discretionary, we VACATE the district
court’s grant of summary judgment for the government. We
REMAND this case to the district court for further proceedings
consistent with this opinion. On remand, the district court should
address whether Cedant’s disclosures complied with Rule
26(a)(2)(C), or it should issue a new scheduling order invoking its
discretionary authority to adjust the default requirements of Rule
26(a)(2). We AFFIRM the denial of Cedant’s motion for summary
judgment.