Expert Witnesses and Scientific Evidence

Expert Fundamentals

Non-Retained Expert

Non-Retained Expert

Non-Retained Expert

Non-retained experts include treating physicians, investigating officers, and employees testifying about opinions formed in the ordinary course. Rule 26(a)(2)(C) requires disclosure of the subject matter and a summary of the facts and opinions, without a full report.

Counsel prepares the disclosure.

Alternative Names:

Non-Retained Testifying Expert, Rule 26(a)(2)(C) Expert

Why it Matters?

The boundary is where disputes arise, since a treating physician who forms causation opinions at counsel's request has moved toward retained status and may require full disclosure. Courts have excluded testimony exceeding the summary disclosure, so the summary must actually describe the opinions rather than gesture at the subject. Drafting it narrowly to preserve flexibility backfires when the testimony is later limited to what was disclosed.

Frequently Confused with

Frequently asked questions

What disclosure is required?

What is the risk of a narrow summary?