[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-12661 ____________________

CAJULE CEDANT, Plaintiff-Appellant, versus UNITED STATES OF AMERICA,

Defendant-Appellee.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cv-24877 ____________________ USCA11 Case: 21-12661 Document: 50-1 Date Filed: 08/04/2023 Page: 2 of 23

2 Opinion of the Court 21-12661

Before JILL PRYOR, NEWSOM, and GRANT, Circuit Judges. GRANT, Circuit Judge: Federal Rule of Civil Procedure 26(a)(2) outlines two types of pretrial disclosures for expert witnesses—one lengthy and one more sparing. Without guidance from this Court, district judges have split on when these witnesses must complete more detailed Rule 26(a)(2)(B) written reports instead of the less onerous Rule 26(a)(2)(C) disclosures. Here, the district court said that any expert testifying about causation had to follow Rule 26(a)(2)(B). That was incorrect. According to the Rule’s text, what matters is when and why an expert witness came to the case, not the content of his testimony. Experts who are “retained or specially employed to provide expert testimony” prepare extensive Rule 26(a)(2)(B) reports, while others can submit a Rule 26(a)(2)(C) disclosure. And whether an expert was “retained” hinges on how she formed her relationship with the party she will testify for—not on the content of the testimony. Here, because Cajule Cedant’s doctors were initially hired to treat him rather than to testify, he only needed to file the less burdensome disclosures. But these baselines are subject to change, because Rule 26(a)(2) also empowers district courts and parties to adjust the default rules. While the court could have exercised this discretion and decided that experts testifying about certain topics needed to file written reports, its ruling below was framed as a mandatory application of the Federal Rules. USCA11 Case: 21-12661 Document: 50-1 Date Filed: 08/04/2023 Page: 3 of 23

21-12661 Opinion of the Court 3

For that reason, we vacate the order excluding Cedant’s experts. On remand, the district court may evaluate his filings under Rule 26(a)(2)(C) as written. Or it may modify those requirements by issuing a new order requesting Rule 26(a)(2)(B) reports for causation witnesses. If so, that decision will be an exercise of the discretion built into Rule 26(a)(2) to adjust its default requirements, which are defined by the relationship between a party and its expert witnesses. I.

Cedant sued the United States under the Federal Tort Claims Act, seeking to recover for damages he allegedly suffered in an accident with a U.S. Postal Service truck. Identifying “an analogous state tort cause of action is required for an FTCA cause of action.” Zelaya v. United States, 781 F.3d 1315, 1325 (11th Cir. 2015). Florida law applies here, and in negligence cases like this one it requires the usual showing of duty,