Expert Reports Need Not Be Sworn Before Trial: US 5th Cir.

Expert witness reports need not be sworn before trial if they could be admissible at trial, the US 5th Circuit Court of Appeals has ruled, finding that a federal district court (N.D. Tex.) abused its discretion in rejecting the reports at summary judgment.

In Patel v. Texas Tech University (5:17-cv-174 N.D. Tex. 2017), Rajin Patel was a graduate student in accounting who the university found to have plagiarized and cheated on his business law final exam, assessing both financial and academic penalties. He then sued the university and several of its officers for substantive due process and equal protection violations.

Before trial, Texas Tech moved to exclude Patel's expert witness reports and for summary judgment. Patel had engaged Dr. Robert Coyle and Dr. Alan Perlman as his experts. Dr. Coyle's report was to opine that Patel “has a learning disability that requires him to study by rote memorization.” Dr. Perlman, a forensic linguistics expert witness, submitted a report applying linguistic theory to “conclude that the similarities between Patel's answers and the test bank answers are insufficient to show Patel cheated.”

The district court denied the motion to exclude the reports, but also refused to consider them because they were unsworn. Without a genuine issue of material fact, the court granted Texas Tech summary judgment.

Patel appealed.

In Patel v. Texas Tech University, No. 19-10009 (5th Cir. 2019), the Court of Appeals found that the district court mistakenly relied on a prior version of Federal Rule of Civil Procedure 56 and the cases applying to it when the district court refused to consider the unsworn reports. In 2010, Rule 56, regarding summary judgment, was amended, and a new Rule 56(c) was added which permits a party to support or dispute summary judgment through unsworn declarations — provided they can be presented in admissible form at trial.

While the Court of Appeals found that the district court's disregard of the expert witness reports was an abuse of discretion, it also found that Patel failed to identify any evidence that the university and its officers “‘did not actually exercise professional judgment' in resolving the cheating allegations” nor did Patel point to any evidence that he “was intentionally treated in a manner irrationally different from other similarly situated students.”

With nothing in the record to support Patel's claims of due process and equal protection violations, the Court of Appeals concluded that the district court correctly granted summary judgment.