Can an Environmental Engineer be a Non-Reporting Expert on Some Issues and a Reporting Expert on Others?

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Can an Environmental Engineer be a Non-Reporting Expert on Some Issues and a Reporting Expert on Others?

The Plaintiffs in a recent Mississippi federal case moved to strike the expert designation of Defendant’s witness, a Technical Environmental Engineer.

In support of their motion to strike, Plaintiffs argued that he was a non-specially retained/ non-reporting expert as to all matters addressed in his designation.

U.S. Magistrate Judge Jane M. Virden wrote in her opinion that a party must disclose, in accordance with the deadline, the subject matter on which a non-reporting expert is expected to testify and must provide a summary of the opinions and facts to which the witness will testify. According to Plaintiffs, Defendants’ designation of the engineering expert didn’t comply with this disclosure requirement, and they asked that it be stricken as unjustified and prejudicial.

Defendants argued that the engineering expert was a non-reporting expert on only the first five reports referenced in an exhibit of his designation, and they contended that those reports sufficiently summarize the subject matter, opinions, and facts on which he is expected to testify. As for the remainder of the issues, Defendants asserted that the expert was a specially retained expert, and the documents referenced in that capacity satisfied Rule 26(a)(2)(B)’s requirement that such an expert provide a report prepared and signed by him containing among other information, “(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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