## Facts

- An employee sued a meat-processing company for alleged workplace injuries and retained a physician, Dr. Nathan Schechter, as a medical expert.
- The defendant moved to exclude the expert’s testimony, arguing the plaintiff’s Federal Rule of Civil Procedure 26(a)(2)(B) disclosure was deficient.
- The plaintiff produced (1) an expert report stating the expert’s opinions, bases, and supporting data/exhibits; (2) the expert’s curriculum vitae; and (3) a list reflecting prior deposition testimony tied to 137 patients over roughly 34 months.
- The curriculum vitae omitted the required list of publications authored within the preceding ten years.
- The prior-testimony list did not identify the cases, did not specify whether testimony was at deposition or trial, and contained incomplete attorney contact information.
- The curriculum vitae and prior-testimony list were not signed by the expert.
- The report did not state compensation, but a supplemental interrogatory answer disclosed the expert would be paid $750.
- Plaintiff’s counsel stated the information provided was gathered from available records and that the expert lacked complete historical records.

## Issues

1. Whether the plaintiff’s Rule 26(a)(2)(B) expert disclosure, which omitted required information about publications, prior testimony, and compensation in the report, satisfied Rule 26(a)(2).
2. If the disclosure was noncompliant, whether exclusion under Rule 37(c)(1) was required or whether the deficiency could be cured through supplementation and other measures.

## Decision

- The court held the Rule 26(a)(2)(B) disclosure was incomplete and did not fully comply with the rule’s specific requirements.
- The court denied the requested wholesale exclusion of the expert’s testimony.
- The court ordered the plaintiff to supplement the expert disclosure to cure the identified deficiencies.
- The court indicated that tailored remedial measures (including allowing additional discovery and other proportionate steps) were preferable to exclusion on this record.

## Legal Principles

- Rule 26(a)(2)(B) requires a retained expert disclosure to include: a complete statement of opinions and bases; data considered; exhibits; qualifications including publications from the preceding ten years; a list of cases with expert testimony at deposition or trial within the preceding four years; and a statement of compensation.
- Partial or opaque disclosures that force the opposing party to reconstruct missing Rule 26(a)(2)(B) information do not satisfy the rule.
- Under Rule 37(c)(1), failure to provide required Rule 26(a) information can lead to exclusion unless the failure is substantially justified or harmless.
- In selecting a Rule 37(c)(1) remedy, courts consider prejudice and whether it can be cured through supplementation and controlled additional discovery, reserving exclusion for situations where noncompliance is willful, in bad faith, or otherwise not curable without unfair prejudice.

## Conclusion

The court enforced Rule 26(a)(2)(B)’s detailed expert-disclosure requirements by finding the plaintiff’s disclosure inadequate, but it declined to bar the expert’s testimony and instead required supplementation and permitted proportionate measures to address any resulting prejudice.


Nguyen v. IBP, Inc., 162 F.R.D. 675 (D. Kan. 1995)