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Aidan Zielske and Emma Redinger*

Aidan Zielske and Emma Redinger*

September 14, 2023

Case Spotlight: Cedant v. United States – The Eleventh Circuit’s Clarification of Expert Witness Report Requirements

The Eleventh Circuit’s decision in Cedant v. United States[1] brought renewed attention to a critical aspect of litigation: which experts must produce reports. In Cedant, the Eleventh Circuit clarified the contours of Federal Rule of Civil Procedure 26(a)(2) and what it means to be “retained or specifically employed to provide expert testimony” and, thus, who is required to prepare an extensive written report under the rule. The Eleventh Circuit rejected the district court’s interpretation of Rule 26(a)(2) that any expert testifying about causation had to follow the Rule 26(a)(2)(B) requirements. Such an interpretation—according to Cedant—is textually incorrect and imposes excessive detail compared to what the alternative Rule 26(a)(2)(C) disclosures require.

Modification of the Baseline Requirements of Rule 26(a)(2) by Courts and Parties

The Eleventh Circuit enumerated the baseline requirements but noted that these are simply the default rules and can be modified at the discretion of the parties and district court. Both Rule 26(a)(2)(B) and (C) state that experts are subject to the respective requirements unless “otherwise stipulated or ordered by the court.”[2] In some circumstances, parties or courts may adjust Rule 26(a)(2) defaults to require either more or less information from expert witnesses. A court’s decision to modify the requirements in such circumstances ought not be anchored in the text of the Federal Rules; the power to modify is discretionary.

The Eleventh Circuit’s Interpretation of “Retained”

The Cedant court resolved the question of whether the parties’ experts—who were testifying on the same subject but had asymmetrical relationships under Rule 26(a)(2)—had the same disclosure requirements. In answering the question, the court considered what it means to be retained.

The court held that a party “retains” someone for a purpose, and that purpose is most naturally defined at the beginning of the relationship.[3] A retained expert witness gets involved to provide expert testimony and “derive[s their] knowledge of the case from preparation for trial,” while a non-retained witness “will have at least some first-hand factual awareness of the subject matter of the suit.”[4] Because Cedant’s doctors were initially hired for the purpose of providing medical treatment rather than testifying, he only needed to file the less burdensome disclosures.[5] Notably, the act of paying an expert does not inherently designate them as a “retained” expert, as a hyper-literalist reading of the Rule would imply. It remains to be seen how wide-ranging the Cedant ruling might be on other courts, such as the 8th Circuit. Ultimately, however, the Eleventh Circuit’s decision can be viewed as renewed clarity to the Federal Rules: non-retained expert witnesses are not required to supply extensive written reports under Rule 26(a)(2)(B).

Questions? We’re Here to Help

If you have questions about how this decision could impact your case, please contact a Haws-KM attorney at (651) 227-9411.


[1] Cedant v. United States, 75 F.4th 1314 (11th Cir. 2023).
[2] Fed. R. Civ. P. 26(a)(2)(B); Fed. R. Civ. P. 26(a)(2)(C).
[3] Cedant, 75 F.4th at 1321.
[4] Id. at 1324.
[5] Id. at 1317.

Authors: Aidan Zielske and Emma Redinger*

*Emma Redinger, a law clerk at Haws-KM, attends the University of Minnesota Law School (J.D. expected May 2024).



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