United States: Expert Witnesses In Bankruptcy Court: Some Legal And Practice Points For Litigators

The rules and best practices applicable to expert witnesses in bankruptcy court differ in a number of respects from those in district court. The author focuses on two areas in which these differences are pronounced: the requirement that an expert furnish a written report and the practice of seeking to exclude expert testimony under Daubert standards. After describing the legal framework governing each area, he discusses some of the tactical considerations that a litigator will need to weigh. 

Litigation in bankruptcy court differs from litigation elsewhere in a number of respects, and some of these differences have a direct bearing on the proper and effective handling of expert witnesses. For example: 

  • Much bankruptcy litigation takes place not in a full- fledged lawsuit but instead in a less formal variant known as a contested matter, in which many of the Federal Rules of Civil Procedure, including those governing expert disclosure, do not apply unless the court so orders. 
  • In large bankruptcies, expert testimony is often given by financial professionals who have participated as advisors in the underlying events, and who give both fact and expert testimony about those transactions. 
  • The great majority of evidentiary hearings in bankruptcy cases are bench trials, rather than jury trials. 

Each of these characteristics of bankruptcy litigation affects the legal rules governing expert witnesses, as well as the practices best suited to handling one's own and the other side's experts. This article focuses on two aspects of expert witness practice in which the rules or best practices in bankruptcy court differ substantially from those applicable elsewhere – namely, (1) the circumstances in which an expert is required to furnish a written report and (2) the pros and cons of challenging the admissibility of an expert's testimony through a so- called Daubert motion. After briefly summarizing the law governing each of these topics, the article examines some of the tactical considerations a litigator will need to weigh as she navigates these issues in bankruptcy court. 

WHEN IS ADVANCE DISCLOSURE OF AN EXPERT'S TESTIMONY REQUIRED? 

In federal district court litigation, the circumstances in which an expert is required to provide a written report are well known. Under Federal Rule of Civil Procedure 26(a)(2)(B), any witness "retained or specially employed to provide expert testimony in the case" is required to furnish a report, setting forth not only the opinions to which he is expected to testify, but also the basis for each opinion, the facts or data he has considered, and a variety of information relating to his experience and credentials. In contrast, a witness who will be giving expert testimony but was not "retained or specially employed" to do so is not required to furnish a report. Instead, the party presenting such a witness is required to disclose the expected subject matter of the witness's testimony, and a summary of the facts and opinions to which he is expected to testify – but not the data supporting those opinions or any information relating to the expert's experience or credentials.1 

In bankruptcy court litigation, the application of these rules is complicated in at least two ways. First, the bankruptcy rules provide that, in a contested matter, Rule 26(a)(2) does not apply – and therefore no advance disclosure of an expert witness's testimony, even of the limited sort mandated by 26(a)(2)(C), is required – unless the court otherwise directs.2 Second, expert witnesses in large bankruptcy cases often play a dual role: They are retained prior to the commencement of litigation to advise their clients on, and sometimes to negotiate, the transactions about which they are subsequently asked to testify. This dual role complicates the question whether the expert has been "retained or specially employed to provide expert testimony in the case" and is therefore required by Rule 26(a)(2)(B) to file a report. 

Contested Matters: Does Rule 26(a)(2) Apply? 

Litigation in bankruptcy court occurs in two distinct types of proceedings: adversary proceedings and contested matters. Adversary proceedings – the more formal of the two types – are discrete lawsuits within the bankruptcy case. An adversary proceeding is required when relief of certain specified sorts (e.g., injunctive relief, a declaratory judgment, or an order affecting a lien or subordinating a claim) is sought.3 Far more common are contested matters, which govern most bankruptcy disputes, including objections to asset sales, other non-ordinary course transactions, settlements, and confirmation of plans of reorganization.4 While less formal than adversary proceedings, contested matters can be just as hard-fought and can involve extensive pre- trial proceedings and a lengthy trial. 

The procedures governing adversary proceedings are identical in most respects to those that govern district court lawsuits. With few exceptions, the Federal Rules of Civil Procedure apply to adversary proceedings.5 By contrast, in contested matters, while some of the Federal Rules of Civil Procedure apply automatically, many apply only if the court so orders.6 

Notably, the federal rule governing expert disclosures, Fed. R. Civ. P. 26(a)(2), applies automatically in adversary proceedings but does not apply in a contested matter unless the court so directs.7 Consequently, in a contested matter, if you expect that expert testimony is likely to be presented and think you will benefit from a mutual exchange of expert disclosures, you should consider asking your adversary to stipulate, or alternatively asking the court to order, that Rule 26(a)(2) applies. 

If neither a stipulation nor a court order is feasible, you are not without recourse. You still have the option of serving document requests and interrogatories, as well as a deposition notice, on the other side's expert.8 While discovery of this sort is no substitute for an expert report, it should enable you to obtain a good deal of the information that a report would contain. 

Dual-Purpose Experts: Have They Been "Retained or Specially Employed to Provide Expert Testimony in the Case"? 

Assume Rule 26(a)(2) applies in your case, either because you are in an adversary proceeding, or because a stipulation or court order provides for that rule to apply in your contested matter. In many cases, it will be clear that your expert is required to provide an expert report. In particular, when you have retained an outside expert after the conclusion of the events giving rise to the litigation, and for the specific purpose of giving expert testimony, there can be little doubt that you "retained . . . [the expert] to provide expert testimony in the case," bringing you squarely within the scope of Rule 26(a)(2)(B). 

The situation is less clear when the expert testimony is to be given by a professional previously retained to provide ongoing assistance to the debtor, the creditors' committee, or another party in the bankruptcy. Financial advisors, restructuring officers, and consultants of other sorts often play such a role, and as a result, their testimony often encompasses matters of both fact and expert opinion. A typical example is a financial advisor who testifies about the negotiations and other circumstances that gave rise to a proposed sale or other transaction (fact testimony), and also offers his opinion that the proposed transaction is better for the estate and creditors than a competing transaction. Clearly, the latter testimony constitutes expert opinion.9 

Is a dual witness of this sort, who offers both fact and expert testimony, required by Rule 26(a)(2)(B) to furnish an expert report? Or is his only obligation to provide the more limited disclosure required by Rule 26(a)(2)(C)? 

Outside of bankruptcy, most courts have held that such a witness need not provide a report. The courts have looked to the Advisory Committee notes to the 1993 amendments to Rule 26(a)(2)(B), which give the example of a treating physician as the sort of witness who need not furnish a report because, although he may give expert testimony about his patient's condition, this is not what he was retained to do.10 

In bankruptcy cases, the situation is often different. The financial advisor or other professional who gives combined fact and expert testimony frequently has been retained to give expert testimony – or at least, that is one of the services covered by his retention agreement.11 Consequently, this expert arguably falls within Rule 26(a)(2)(B)'s plain terms. In addition, the court may conclude that requiring a financial advisor or other retained professional to provide a written report does not impose an undue burden of the sort that a treating doctor might suffer if required to prepare a report. 

Does this mean that a financial advisor or other professional who gives combined fact and expert testimony in bankruptcy court will likely be required to furnish a written report? Not necessarily. The bankruptcy court's application of Rule 26(a)(2)(B) to this situation may be shaped by practical considerations. In particular, would the provision of an expert report serve a useful purpose? Does the expert's opinion rest on data that the expert has collected and analyzed (e.g., comparable transactions), which in fairness should have been disclosed to the other side to enable them to prepare a proper cross-examination and to consider retaining a rebuttal expert? Or does the opinion rest on little more than the expert's personal judgment, reflecting his accumulated experience but not supported by the collection or analysis of data? In a case of the latter sort, the court may conclude that a written report would serve little purpose and therefore should not be required. 

Tactical Considerations 

Assume that Rule 26(a)(2) applies in your case, and that you expect your adversary to present the dual fact and expert testimony of a financial advisor or other bankruptcy professional. Should you demand, up front, that this witness provide an expert report? Or should you remain silent until he takes the stand and then seek to preclude any expert testimony for failure to furnish a Rule 26(a)(2)(B) report?12 

The prospects for preclusion are likely to hinge on whether your adversary has disclosed, pursuant to Rule 26(a)(2)(C), that this witness was expected to provide expert testimony. If such disclosure was given and you did not demand a written report, the court may conclude that your failure to do so was tactically motivated – intended to lay the groundwork for preclusion – and consequently that any resulting prejudice was self- inflicted. 

On the other hand, if your adversary has not provided even Rule 26(a)(2)(C) disclosure, you will be on much firmer ground in seeking to preclude the witness's eventual expert testimony. You are likely to have a sound argument that the failure to provide even minimal disclosure of this expert testimony deprived you of the ability to take discovery of the witness's expert opinions through document requests and interrogatories, as well as at deposition.13 

DAUBERT CHALLENGES: SHOULD YOU FILE A PRE-TRIAL MOTION, MAKE AN ORAL MOTION, OR SAVE YOUR POWDER FOR CROSS-EXAMINATION? 

A large body of case law addressing the admissibility of expert testimony has developed in the two decades since the Supreme Court's seminal decision on this issue, Daubert v. Merrell Dow Pharmaceuticals, Inc.14 When grounds exist to challenge an expert's testimony on Daubert grounds, it is customary – both in bankruptcy court and out – to file a pre-trial motion seeking preclusion. 

While the rules governing Daubert motions are the same in bankruptcy and district court, the pros and cons of filing such a motion differ in these two venues. In bankruptcy court, where the vast majority of trials are bench trials, the downsides of filing such a motion usually outweigh the potential advantages. We review the potential risks and rewards below, after briefly summarizing the governing law. 

The Legal Framework

The principal rule governing the admission of expert testimony is FRE 702: 

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (1) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case. 

In Daubert, the Supreme Court tasked trial judges with "ensur[ing] that any and all scientific testimony or evidence admitted is not only relevant, but reliable."15 The Supreme Court extended the trial court's "gatekeeping" role to "technical" and "other specialized" knowledge in Kumho Tire Co., Ltd. v. Carmichael.16 

Chief among the requirements imposed by FRE 702 is that an expert opinion have "a reliable basis in the knowledge and experience of [the expert's] discipline."17 Although there is no definitive test for determining the reliability of expert testimony, the Supreme Court has identified a number of factors bearing on reliability, including (1) whether a theory or technique "can be (and has been) tested," (2) "whether the theory or technique has been subjected to peer review and publication," (3) a technique's "known or potential rate of error," and "the existence and maintenance of standards controlling the technique's operation," and (4) whether a particular technique or theory has gained "general acceptance" in the relevant scientific community.18 Most fundamentally, the opinion cannot be "connected to existing data only by the ipse dixit of the expert."19  FRE 702(a) also requires that an expert opinion "help the trier of fact." A number of corollaries follow: 

  • "As a general rule, an expert's testimony on issues of law is inadmissible."20 
  • An expert report that serves as a mere "conduit" for hearsay likewise infringes the role of the factfinder because "the job[] of judging [the hearsay] witnesses' credibility and drawing inferences from their testimony belongs to the factfinder."21 "Although the Rules permit experts some leeway with respect to hearsay evidence, Fed. R. Evid. 703, a party cannot call an expert simply as a conduit for introducing hearsay under the guise that the testifying expert used the hearsay as the basis of his testimony.22
  • n expert may not offer "'factual narratives and interpretations of conduct or views as to the motivation of parties.23

These rules apply in both bench trials and jury trials. As a practical matter, though, many courts apply these rules much less stringently in the former than in the latter. As Bankruptcy Judge Barbara Houser has observed, "th[e] Court's 'chief role when determining the admissibility of expert testimony under Daubert is that of a gatekeeper,' and there is little need for the Court to serve as a gatekeeper for itself."24 

Tactical Considerations 

Assume you have solid grounds to challenge an expert's testimony – whether based on deficiencies in his qualifications, the reliability of his methodology, the helpfulness of his testimony to the court, or some combination of these elements. Should you assert your objections in a pre-trial motion? Alternatively, should you wait until the expert has taken the stand and then assert an oral objection to part or all of his testimony?25 Or should you opt for a third alternative – namely, make no attempt to exclude the witness's testimony, but instead use the deficiencies of his qualifications or methodology as fodder for cross-examination? 

It has become customary to raise objections to expert testimony in advance, through a pre-trial Daubert motion. And doing so can have undeniable advantages. An objection that is not simple often benefits from the sort of marshaling of factual details (e.g., from the expert's report or deposition testimony), and case law that may be difficult to do through oral argument or cross-examination alone. 

In addition, a pre-trial motion that succeeds in excluding a key expert witness can lay the groundwork for a favorable settlement, or even for summary judgment, if the witness is indispensable to the other side's case. 

On the other hand, proceeding by pre-trial motion can have significant disadvantages. Most Daubert motions are denied – particularly when the court, rather than a jury, will be the fact-finder, as is almost always the case in bankruptcy court. Experienced judges are well aware that, in a bench trial, the admission of expert testimony "for what it is worth" leads only rarely to reversal. In contrast, the exclusion of expert testimony can lead to reversal – and even worse, to an order remanding the case for retrial, a highly inefficient result. Given these considerations, most bankruptcy courts exercise caution in considering Daubert motions, granting such motions only when highly confident that their decision will not be reversed. 

A Daubert motion that is denied can be a boon to the other side, alerting the expert to weaknesses in his analysis that he may not have fully appreciated. The educated expert may be able to cure these weaknesses prior to trial, or at least to defend his analysis more effectively during cross examination. 

In addition, even a successful pre-trial Daubert motion can turn into a long-term defeat if the other side has time, and is permitted by the court, to cure the deficiencies of the expert's analysis or to retain a new expert. And a Daubert challenge that limits, but does not entirely exclude, an expert's testimony will by definition have eliminated some of your best cross- examination material. 

For these reasons, it may be advantageous, in the right case, to hold your Daubert objections until the opposing expert takes the stand. 

Moreover, the principal considerations that weigh against filing a pre-trial Daubert motion will often counsel against seeking to exclude the expert's testimony through an oral motion or objection:

  • An oral motion or objection will usually be denied for the same reasons as a pre-trial motion, as well as the additional reason that the court will not have had the benefit of pre-trial briefing to satisfy itself that the chances of reversal are low. 
  • By raising your objections at the outset of the expert's testimony, you will have given the expert a preview of some of your most powerful cross- examination points, thereby giving the expert a valuable (albeit brief) opportunity to fortify himself against the coming attack. 
  • The judge, having heard and overruled your objections, may have less interest in hearing these same grounds covered a second time through cross- examination. 

For these reasons, you may find that the wiser course is to forego any attempt to exclude the expert's testimony, either at trial or before, and instead to hold your powder and develop your objections through cross- examination. 

Inevitably, your choice among these tactical options will be highly context-specific. Consider the grounds for your Daubert objection: Are they sufficiently clear- cut that the court would likely grant your motion despite the prudential reasons favoring denial? Consider the judge: Is she sufficiently experienced and confident on evidentiary matters that she will not be deterred by the possibility of reversal? Consider the prospects for settlement before trial: Is there a meaningful chance that a successful Daubert motion would help achieve a favorable settlement? 

If the answer to each, or most, of these questions is Yes, a pre-trial motion to exclude the witness's testimony may be worth pursuing. But the downsides of such a motion can be substantial. The experienced bankruptcy litigator will carefully weigh the potential risks and rewards before choosing which course of to pursue. 

Footnotes

1 Fed. R. Civ. P. 26(a)(2)(C).

2 Fed. R. Bankr. Proc. 9014(c).

3 Fed. R. Bankr. Proc. 7001.

4 Fed. R. Bankr. Proc. 9014.

5 Fed. R. Bankr. Proc. 7001-7087.

6 Fed. R. Bankr. Proc. 9014.

7 Compare Fed. R. Bankr. Proc. 7026 with Fed. R. Bankr. Proc. 9014(c).   8 Fed. R. Civ. P. 33 (interrogatories), 34 (document requests), 45 (subpoenas); see also Fed. R. Civ. P. 26(b)(4)(A) (depositions of experts); Fed. R. Bankr. Proc. 7033, 7034, 9014, 9016 (each of these rules applies in contested matters unless the court orders otherwise).

9 Fed. R. Evid. 701 (opinions "based on scientific, technical, or other specialized knowledge" constitute expert, not lay, testimony).

10 See, e.g., Downey v. Bob's Disc. Furniture Holdings, 633 F.3d 1, 6-7 (1st Cir. 2011) ("as long as an expert was not retained or specially employed in connection with the litigation, and his opinion about causation [or other matters] is premised on personal knowledge and observations made in the course of treatment, no report is required under the terms of Rule 26(a)(2)(B)") (citing Ad. Comm. notes); Chesney v. Tennessee Valley Auth., 2011 WL 2550721, at *3 (E.D. Tenn. June 21, 2011) (witnesses who "were participants in [defendant's] ash spill response activities" and "scientists and engineers who used their 'specialized knowledge, etc.' in discharging their employment duties" were not subject to the written expert report requirement).

11 Many retention agreements for financial advisors or other bankruptcy professionals specifically identify expert testimony as one of many services to be provided. Other agreements do not specifically mention expert testimony, but contain a broad scope of services provision that can fairly be read to include expert testimony if eventually requested.

12 Fed. R. Civ. P. 37(c)(1) (failure to comply with Rule 26(a) warrants exclusion of expert testimony at trial "unless the failure was substantially justified or is harmless"); Fed. R. Bankr. Proc. 7037, 9014 (Rule 37 applies in contested matters).

13 A cautionary note: Your ability to assert this argument effectively may be compromised if you have taken this witness's deposition, particularly if you inquired at deposition about expert opinions the witness might offer, rather than limiting your questions to factual matters. If the witness's expert opinions have been explored at deposition, his failure to provide a report may be deemed "harmless" and not a sufficient basis for preclusion, see Fed. R. Civ. P. 37(c)(1); cf. Fed. R. Civ. P. 26(e)(1) (supplementation of disclosures not required if the omitted material has "otherwise been made known to the other parties during the discovery process"); see generally Gregory Joseph, The Temptation to Depose Every Expert, Litigation, Vol. 40, No. 2 (Winter 2014), at 36-37.

14 509 U.S. 579 (1993).

15  509 U.S. at 589.

16 526 U.S. 137, 141 (1999).

17 Daubert, 509 U.S. at 591-92; see also FRE 702(c), (d).

18 Daubert, 509 U.S. at 593-94.

19 Kumho Tire, 526 U.S. at 157; see also, e.g., Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d 416, 418, 419 (7th Cir. 2005) (damages expert's "method, 'expert intuition,' is neither normal among social scientists nor testable – and conclusions that are not falsifiable aren't worth much to either science or the judiciary."); E.E.O.C. v. Bloomberg L.P., No. 07 Civ. 8383 (LAP), 2010 WL 3466370, at *15 (S.D.N.Y. Aug. 31, 2010) (excluding expert opinion "supported by what appears to be a 'because I said so' explanation").

20 United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991); see also Marx & Co., Inc. v. Diners' Club, Inc., 550 F.2d 505, 510 (2d Cir. 1977) ("The special legal knowledge of the judge makes the witness' testimony superfluous.").

21 Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 136 (2d Cir. 2013) (affirming exclusion of expert report "undergirded by hearsay statements").

22 Id.

23 Weisfelner v. Blavatnick (In re Lyondell Chem. Co.), 2016 WL 5900154, *3 (Bankr. S.D.N.Y Oct. 11, 2016) (quoting In re Rezulin Prod. Liab. Litig., 309 F. Supp. 2d 531, 541 (S.D.N.Y. 2004)).

24 In re Wyly, 552 B.R. 338, 362 (Bankr. N.D. Tex. 2016) (quoting Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358, 371 (5th Cir. 2000)).

25 This can be done in a variety of ways: as an objection when your adversary asks the witness for his expert opinion or asks the court to find the witness qualified to give expert testimony, or alternatively as an oral motion to exclude the witness's expert testimony.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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