We missed an interesting decision from Judge Fallon last month. In Marquinez et al v. Dole Food Company Inc., C.A. No. 12-695-RGA-SRF, D.I. 582 (D. Del. Apr. 24, 2025), Judge Fallon rejected an attempt to "recycle" an expert opinion from a prior, related action.
Apparently the plaintiff had previously retained the experts, and attempted to re-use their prior expert opinions, by admitting the transcript of their prior testimony:
The Hendler Declaration confirms that both witnesses were formally retained as expert witnesses in a prior litigation, they served expert reports in the prior litigation, and both were asked but declined to serve as retained expert witnesses in this case. (D.I. 580 at ¶¶ 9-13) Plaintiffs now seek to adopt and recycle their expert opinions contained in a transcript from the prior litigation . . . .
Id. The plaintiff attempted to do this by designating the witnesses as experts under FRCP 26(a)(2)(C), which does not require production of a report, rather than under the usual FRCP 26(a)(2)(B), which does.
The Court included a nice explanation of the difference between the two alternative rules:
This motion concerns whether Plaintiffs improperly designated two expert witnesses under Federal Rule of Civil Procedure 26(a)(2)(C) instead of Rule 26(a)(2)(B). Under the latter, the designated expert is required to provide a report that satisfies the criteria of subsections (i) through (vi). Under the former, a more limited set of disclosures is permitted without the requirement of a written report. Experts under both categories draw on their knowledge and experience in offering opinion testimony. The distinction is that a report is not required where the expert witness obtained his knowledge from his personal or first-hand experience typically gained through his employment by a party as opposed to one who formed an opinion based upon an analysis and application of a scientific methodology to the facts of the case as provided by the counsel who retained him. This distinction is aptly demonstrated in Cirba Inc. v. VMware, Inc., C.A. No. 19742-GBW, 2023 WL 3151853, at *2 (D. Del. Apr. 18, 2023), where the non-retained expert was limited to offering opinions based upon her personal experience in development of the defendant's accused products.
Id. In other words, the "no report" portion of the rule applies when the expert is testifying as an expert based on their own personal experience with the facts at issue, rather than as someone who was retained to analyze those facts. Otherwise, the expert has to supply a report.
The Court then rejected the plaintiff's attempt to use FRCP 26(a)(2)(C) like this to recycle expert testimony, noting the problems this would cause:
. . . Rule 26(a)(2)(C) was not intended to provide an avenue for recycling an expert opinion in subsequent cases without calling the witness live at trial. Such a practice would encourage the introduction of expert opinions without regard to factual nuances in the subsequent cases. It would, in effect, create a "one and done" rule, that is, once the retained expert writes a report and testifies in the original litigation, there would be a non-rebuttable presumption of the reliability of the expert's opinions for all future cases involving the same subject matter while depriving the opposing party of an opportunity to cross-examine the expert on opinions about facts specific to the subsequent case(s). While the testimony of a non-retained expert may be based on the expert's knowledge and experience, the expert reports and testimony from Dr. Gray and Dr. DiBartolomeis in the prior litigation do not constitute an independent source of knowledge and experience. In other words, the "experience" of producing an expert report in a prior litigation does not absolve the expert of the obligation under Rule 26(a)(2)(B) to serve an expert report in the subsequent litigation.
Id. In short: You can't get around the need to hire and retain an expert by recycling their testimony from a prior case.
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