981 F.3d 652
8th Cir.2020Background
- Douglas West co-founded Western Marketing; after disputes he retained Domina Law Group (DLG) and DLG filed for judicial dissolution in 2014. Under Nebraska law the company elected to purchase West’s shares; state court later valued them at $658,000.
- Finken and Western Marketing later amended their dissolution petition seeking damages; West died shortly after a jury awarded Western Marketing ~ $30,000. West’s Estate sued DLG for legal malpractice.
- The Estate alleged DLG failed to advise West that (1) filing for judicial dissolution permits the other shareholder/company to elect to purchase shares and (2) that election is irreversible; had West known, he claims he could have sold shares for $3.2M (to company) or $4.8M (to brother).
- Each side disclosed expert reports: Estate’s expert (McCormick) said DLG breached the standard of care by failing to advise on election/irrevocability; DLG’s expert (Wandro) opined DLG met the standard and, after an attorney’s affidavit, supplemented to state DLG had advised West of election/irrevocability.
- At trial DLG’s counsel posed hypotheticals to Wandro assuming DLG had discussed dissolution/election/irrevocability; Wandro answered that such facts would show DLG met the standard of care. The district court admitted the testimony over the Estate’s Rule 26 objections; the jury ruled for DLG and the court denied a new trial.
- The Estate appealed, arguing Wandro’s trial testimony exceeded his Rule 26 report and prejudiced the Estate; the Eighth Circuit reviewed for abuse of discretion and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wandro’s trial testimony (answers to hypotheticals) exceeded his Rule 26 expert report so as to require exclusion or a new trial | Estate: Wandro’s trial answers relied on factual assumptions and new bases not disclosed in his report, violating Rule 26 and prejudicing the Estate | DLG: Wandro consistently maintained the same ultimate opinion (DLG met the standard); his supplemental report explained the bases and the hypotheticals tracked those bases | Court: No abuse of discretion — the testimony did not add new factual bases beyond the supplemental report and was permissible |
| Whether any error in admitting Wandro’s testimony required a new trial as prejudicial | Estate: Admission was unfair and materially affected the verdict | DLG: Any error was harmless; the testimony was foreseeable, subject to cross-examination, and not introduced in bad faith | Court: Any error was harmless given minimal prejudice, opportunity to attack the testimony, and lack of material impact |
Key Cases Cited
- Am. Auto Ins. Co. v. Omega Flex, Inc., 783 F.3d 720 (8th Cir. 2015) (standard of review—abuse of discretion for expert-admission rulings)
- Farmland Indus., Inc. v. Morrison-Quirk Grain Corp., 54 F.3d 478 (8th Cir. 1995) (district court’s broad control over Rule 26 disclosure issues)
- Tenbarge v. Ames Taping Tool Sys., Inc., 190 F.3d 862 (8th Cir. 1999) (new trial required where expert offered a materially different, trial-only opinion)
- Voegeli v. Lewis, 528 F.2d 89 (8th Cir. 1977) (discovery of expert opinion must not become evasion)
- Barnes v. Omark Indus., Inc., 369 F.2d 4 (8th Cir. 1966) (experts may answer hypotheticals and base opinions on assumed facts)