Written report not needed for general contractors to testify as experts on roof damage

Law Reporter, May 2003

Full Faith Church of Love W., Inc. v. Hoover Treated Wood Prods., Inc., ___ F. Supp. 2d ___, No. Civ.A. 01-2597-KHV, 2003 WL 169015 (D. Ran. Jan. 23, 2003).

A U.S. district court held two contractors who repaired a roof may offer expert testimony about the damage without providing a written disclosure report to defendant.

Here, a church sued a manufacturer of treated wood products, alleging that defendant's product caused the church's roof structure to decay. Plaintiff sought to offer the testimony of two contractors who had repaired the roof. Defendant moved to exclude this testimony on the ground that plaintiff had not provided a written disclosure report as required by Fed. R. Civ. P. 26(a)(2)(B), which applies to experts who are "retained or specially employed to provide expert testimony in the case."

Plaintiff responded that a written report is not necessary because it did not initially retain die contractors to provide expert testimony in the lawsuit, but rather hired them to repair its roof. Plaintiff added that the contractors would offer expert testimony regarding facts that they learned during the course of their work as general contractors. Plaintiff asserted that this testimony would be analogous to that of a treating physician in a medical case.

The trial court agreed with plaintiff. Not every witness who offers expert testimony is necessarily retained or specially employed for that purpose, the court observed. The determinative issue is the scope of the proposed testimony. A treating physician becomes a "retained" expert if the testimony extends beyond the facts learned during the treatment of the patient, and a similar principle should apply here, the court found.

Here, plaintiff's expert disclosure statement affirms that die contractors will testify regarding facts they learned during their work at the church, including (1) the degradation of treated trusses and plywood at tine church; (2) the repairs to or reconstruction of the church's roof; and (3) die purpose, necessity, and reasonableness of such repairs and their costs. Under such circumstances, no written disclosure report is required under Rule 26(a)(2)(B).

Plaintiff's Counsel

* Michael B. Lowe, Christopher J. Sherman, and Scott C. Long, all of Overland Park, Kan.