Unreported / Non-Citable
Background
Valerie Taylor sued SkyWest Airlines, Inc., alleging sex discrimination, a sex-based hostile work environment, and retaliation. The court’s docket-control order required parties bearing the burden of proof to identify their experts and produce reports complying with Federal Rule of Civil Procedure 26(a)(2)(B) by June 17, 2026, except for attorney-fee experts.
On the deadline, Taylor designated Ahad Khan as an attorney-fee expert and Kit Darby as an expert on back pay and front pay, while stating that neither had prepared a report. SkyWest moved to strike Darby’s designation and exclude his testimony because Taylor had not provided the report required for a retained testifying expert. Taylor did not respond to the motion.
The Court’s Holding
The court granted SkyWest’s motion and excluded Darby’s testimony. Because Taylor retained Darby to provide expert testimony, Rule 26(a)(2)(B) required her to serve a written report prepared and signed by him by the court-ordered deadline. Her failure to do so triggered Rule 37(c)(1)’s presumptive sanction of exclusion unless the omission was substantially justified or harmless.
The court concluded that all four relevant factors favored exclusion. Taylor did not establish the testimony’s importance or explain the missing report; SkyWest was prejudiced because it could not assess whether to retain a responsive damages expert before its own deadline; and a continuance would disrupt the case schedule, including the November 20, 2026 discovery cutoff. The violation therefore was neither substantially justified nor harmless.
Key Takeaways
- A retained testifying expert must provide a Rule 26(a)(2)(B) report by the court-ordered disclosure deadline.
- Designating an expert without the required report may result in exclusion under Rule 37(c)(1).
- A missing damages report prejudices the opposing party when it prevents an informed decision about retaining a rebuttal expert.
- Courts need not grant a late continuance to cure noncompliance that would disrupt an existing case schedule.
Why It Matters
The decision underscores that identifying an expert by the deadline is not enough when Rule 26 requires a written report. Litigants seeking expert testimony on back pay, front pay, or other damages should serve a complete report on time or be prepared to show that any omission was substantially justified or harmless.