Are Expert Reports Admissible Evidence or Inadmissible Hearsay?

More than any rule of evidence, hearsay has been extensively defined and litigated in rule books and cases. The definition is well-settled: hearsay is an out-of-court statement offered for the truth of the matter asserted. See Fed. R. Evid. 801. And the exceptions to the general rule barring the admission of hearsay are all well-known. Whether it be the statement of a party opponent, a business record, a present sense impression, or an excited utterance, there are countless rules that allow for the admission of statements (including those contained in documents) that would otherwise be excluded as hearsay.

One could argue that there is a rule for everything, but in reality there is not. One issue on which there is neither an applicable rule nor settled law is whether expert reports are admissible at trial—not in lieu of, but in addition to, expert testimony. Courts have gone both ways on this issue, some stretching the hearsay exceptions and others relying on the nature of the proceeding (e.g., bench vs. jury trial) to inform the outcome.