An expert’s opinion often comes in handy in a trial. In last April’s case Agha v. Munroe, the plaintiff was seeking damages because she couldn’t work after a car accident. An accountant or actuary could have calculated her lost wages and shared this number with the court, but the plaintiff didn’t provide an expert report in time for trial.
Until recently, it was easy to request leave in order to deliver that kind of report. But as the Agha decision shows, updates to the Rules of Civil Procedure mean that an adjournment is only a possibility, not a guarantee.
Rule 53.03 of Civil Procedure requires that expert reports are served at least 90 days before the pre-trial conference, and that any responses come at least 60 days beforehand. This rule ensures that parties cannot surprise counsel with new expert opinions on the eve of trial. It also prevents the trial from devolving into a game of expertise ping pong: a defendant produces an expert report to the plaintiff, who in response produces an expert report to refute the defendant’s expert, and then the defendant’s expert comes back with a new report to support their original conclusions, and so on.
Until recently, Rule 53.08 provided an exception to Rule 53.03 that basically neutralized the 90-day deadline. Described as an “escape clause” in Agha, Rule 53.08 historically mandated that a party can have extra time to produce an expert report, as long as the opposing party would not suffer prejudice or undue delay. The language of the rule meant that leave was effectively compulsory where an adjournment could reopen the timeframe for service, which often lead to late expert reports and a general disregard for the deadlines outlined by Rule 53.03.
In his notes on Agha, Justice Mark L. Edwards shows a new test has been established. Per the amendment, the rule has been changed from reading that leave “shall be granted” provided certain conditions are met to now read that leave “may be granted.” This new discretion signals to counsel that Rule 53.08 gives them only the opportunity to ask for an indulgence, not the assurance that they will receive one.
Justice Edwards also highlights a new condition that must be met before leave is granted. The previous incarnation of Rule 53.08 required only a lack of prejudice and undue delay suffered by the opposition, putting the onus on whoever a late service motion to argue against adjournment. The rule now requires the moving party provide a “reasonable explanation” for their late service. This shifts the responsibility back where it belongs, forcing the moving party to make the case for admission of a late report.
The amendments to Rule 53.08 reaffirm the importance of expert reports—and the importance of submitting that homework on time. Without an authoritative opinion, the judge or jury is left to guesstimate crucial information, which rarely helps anybody’s case.
Per the amendment, the rule has been changed from reading that leave ‘shall be granted’ provided certain conditions are met to now read that leave ‘may be granted.’