In Re Illusions Holdings, Inc. U.S. District Court for S.D.N.Y. (1999)
Author: Bram

Cause of action: The following is a cause of action for damages as the result of injuries from a diving accident on DF's boat. This actual action is for a motion in limine.

Procedural History: Wagner gets his motion in limine granted, with costs to be submitted after trial.

Facts: Motion in limine to exclude the testimony of 2 non-party witnesses who were deposed by DF as "fact" or "lay" witnesses.  Wagner, the PL, contends Illusions did not comply with FRCP 26 relating to disclosure of expert testimony, and thus their testimony should be precluded.  Wagner also contends he should awarded costs for bringing the motion and for attending the two depositions.

Witnesses above testified at a deposition before opposing counsel was notified, despite their filing of a demand for report of expert witnesses, and over the objections of Wagner.  DF contends its witnesses were not experts even though it is possible they may be construed as such, and that a trial court would rule on the admissibility of their testimony.

Issue(s): Under FRCP 26, is the deposed testimony of 2 "non-expert" witnesses allowed despite the objections of PL and despite the submission of an answer to PL's demand for report of expert witness?

Court's Rationale/Reasoning: What is expert testimony and what is not expert testimony has been at debate for a while.  The Federal Rules of Evidence  provides a "lay witness" is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to clear up a fact in issue.  But in Daubert v. Merrell Dow, the court held the trial judge has the duty of making sure an expert's testimony  rests on a reliable foundation and is relevant to the case-at-bar.  But the line is blurry between what the Rules of Evidence provide for an expert and for a lay witness.

The court decides to take the context of the deposed testimony and decide for themselves if it was expert or lay, and they indeed decide it is expert in nature.  The advisory committee for the rules of evidence say the rule is broadly phrased.  "Expert" can also mean specialized knowledge, which can be qualified by skill, experience, education, or training.  The testimony provided in the deposition had to do with training methods, procedures for scuba diving, water temperature, and visibility have more to do with expert opinion than a lay opinion.

Rule: Under FRCP 26, all expert testimony is required to be in a written report to opposing counsel.  Expert testimony does not just mean an expert who is employed by that parties' company, but can also mean a person who is specifically employed to provide such testimony.  The report should contain all opinions to be expressed as well as the bases for those opinions.  It should also include the witnesses backgrounds and the compensation they are to be provided, if any, as well as a listing of other cases the witness has testified in the past (even in deposition) in the last four years.

FRCP 26 also says if a report is requested, then a deposition does not take place until after the report has been submitted.

FRCP 37(c)(1) provides that any expert testimony not disclosed properly may not be used at trial, at a hearing, or on a motion.

Holding: No.  The testimony of the two "lay" witnesses is clearly based upon specialized knowledge within the scope of rule 702 of the FR of Evidence, and therefore subject to FRCP 26 regarding disclosure.  Since Illusions failed to make such disclosures, the testimony may not be used at trial.