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Federal Rules of Civil Procedure
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Federal Rule of Civil Procedure 56 governs how expert evidence may affect summary judgment in expert-dependent cases. This article explains expert reports and declarations, admissible form, Rule 702 challenges, competing expert opinions, the effect of expert exclusion, incomplete expert discovery under Rule 56(d), and when the record presents a genuine dispute of material fact.
Federal Rule of Civil Procedure 56 governs summary judgment in civil actions and proceedings governed by the Federal Rules of Civil Procedure in United States district courts. In cases involving scientific, medical, engineering, financial, or other specialized issues, expert evidence may be central to whether the record presents a genuine dispute of material fact requiring trial.
At summary judgment, the court generally does not weigh competing admissible expert opinions to decide which is more persuasive. It may, however, need to resolve admissibility issues under Federal Rule of Evidence 702 before applying Rule 56 to the remaining record.
If necessary expert testimony is excluded or cannot properly be presented in admissible form, the remaining evidence may be insufficient to support an essential element.
This guide examines how expert reports, declarations, Rule 702 challenges, and expert discovery can affect the Rule 56 analysis.
Rule 56(a) provides that a court shall grant summary judgment when the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. A party may seek summary judgment on an entire claim or defense or on part of a claim or defense.
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the Supreme Court explained that a dispute is genuine when the evidence would permit a reasonable jury to return a verdict for the nonmoving party. At summary judgment, the court does not weigh the evidence or decide the truth of disputed factual matters. It determines whether the evidence presents a sufficient disagreement to require trial.
Under Celotex Corp. v. Catrett, 477 U.S. 317 (1986), summary judgment may be appropriate after adequate time for discovery when the party that will bear the burden of proof at trial fails to make a sufficient showing on an essential element of its case.
These principles are especially important in expert-dependent cases. If substantive law requires expert testimony on causation, professional negligence, product failure, engineering defect, valuation, damages, or another element, the adequacy of that evidence may determine whether there is enough evidence to survive summary judgment.
Federal Rule of Civil Procedure 56 governs summary judgment in civil actions and proceedings governed by the Federal Rules of Civil Procedure in United States district courts. In cases involving scientific, medical, engineering, financial, or other specialized issues, expert evidence may be central to whether the record presents a genuine dispute of material fact requiring trial.
At summary judgment, the court generally does not weigh competing admissible expert opinions to decide which is more persuasive. It may, however, need to resolve admissibility issues under Federal Rule of Evidence 702 before applying Rule 56 to the remaining record.
If necessary expert testimony is excluded or cannot properly be presented in admissible form, the remaining evidence may be insufficient to support an essential element.
This guide examines how expert reports, declarations, Rule 702 challenges, and expert discovery can affect the Rule 56 analysis.
Rule 56(a) provides that a court shall grant summary judgment when the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. A party may seek summary judgment on an entire claim or defense or on part of a claim or defense.
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the Supreme Court explained that a dispute is genuine when the evidence would permit a reasonable jury to return a verdict for the nonmoving party. At summary judgment, the court does not weigh the evidence or decide the truth of disputed factual matters. It determines whether the evidence presents a sufficient disagreement to require trial.
Under Celotex Corp. v. Catrett, 477 U.S. 317 (1986), summary judgment may be appropriate after adequate time for discovery when the party that will bear the burden of proof at trial fails to make a sufficient showing on an essential element of its case.
These principles are especially important in expert-dependent cases. If substantive law requires expert testimony on causation, professional negligence, product failure, engineering defect, valuation, damages, or another element, the adequacy of that evidence may determine whether there is enough evidence to survive summary judgment.
Rule 56(c) governs how parties support and challenge factual positions at summary judgment, including how expert evidence is cited and whether the court may properly consider it.
Under Rule 56(c)(1), a party may support or dispute a factual assertion by citing particular portions of the record, including depositions, documents, electronically stored information, affidavits or declarations, admissions, interrogatory answers, stipulations, and other materials. A party may also show that the cited materials do not establish a genuine dispute or that the opposing party cannot produce admissible evidence supporting a fact.
Expert evidence may appear in reports, deposition testimony, affidavits, declarations, testing materials, and other parts of the record. Its significance depends on whether the cited portions support a material fact relevant to the Rule 56 motion.
If an opponent objects under Rule 56(c)(2) that the cited material cannot be presented in admissible form, the proponent must address that objection.
Rule 56(c)(2) permits a party to object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. Summary-judgment materials do not always have to appear in the same form in which they would be introduced at trial. The question is whether they can be presented in admissible form.
The 2010 Advisory Committee Note explains that, once such an objection is made, the proponent must show that the material is admissible as presented or explain the admissible form anticipated at trial.
For expert evidence, this may require showing how the opinion can be presented in admissible form. Rule 703, however, permits an expert, subject to the applicable evidentiary requirements, to rely on facts or data that need not themselves be admissible if experts in the field would reasonably rely on that type of information.
Rule 56(c)(4) provides that an affidavit or declaration used to support or oppose summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the declarant is competent to testify about the matters stated.
When an expert submits an affidavit or declaration, the evidence rules governing expert testimony also apply. An expert need not personally observe every fact or item of data underlying the opinion and may rely on information permitted by Rules 702 and 703.
An expert declaration used at summary judgment should identify the opinions relevant to the material issue and provide enough information about their basis for the court to assess whether the testimony may properly be considered under Rule 56.
When challenged expert testimony is material to a summary-judgment motion, the court may need to determine whether it satisfies Federal Rule of Evidence 702.
The proponent must demonstrate to the court that it is more likely than not that:
the expert's scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert's opinion reflects a reliable application of those principles and methods to the facts of the case.
The 2023 Committee Note emphasizes that questions involving the sufficiency of an expert's basis and the reliable application of methodology cannot automatically be treated as matters affecting only weight. When expert admissibility is challenged or otherwise requires resolution, the court determines whether the applicable Rule 702 requirements are satisfied.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held that trial judges must assess the relevance and reliability of proposed scientific expert testimony. The Court also noted that summary judgment remains available when the evidence is insufficient for a reasonable juror to find for the nonmoving party under the applicable burden of proof. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), extended that gatekeeping responsibility to technical and other specialized expert testimony.
Exclusion of expert testimony does not automatically result in summary judgment. The key question is whether enough evidence remains on an element the affected party must prove, particularly when expert testimony is required by substantive law or is otherwise necessary to establish that element.
General Electric Co. v. Joiner, 522 U.S. 136 (1997), illustrates the interaction between expert admissibility and summary judgment. The district court excluded testimony offered to establish that Joiner's exposure to PCBs contributed to his cancer and entered summary judgment for the defendants. The Supreme Court held that abuse of discretion governs appellate review of expert-admissibility decisions and concluded that the district court did not abuse its discretion in finding the relied-upon studies insufficient to support the PCB-causation opinions.
The Court also made clear that its conclusions did not dispose of the entire case because issues involving alleged exposure to furans and dioxins, and related expert testimony, remained open on remand. Consistent with Celotex, if exclusion leaves a party without sufficient evidence on an essential element, summary judgment may be appropriate.
Competing expert opinions can create a genuine dispute of material fact, but they do not automatically prevent summary judgment.
If expert admissibility is disputed or otherwise requires resolution, the court may need to determine whether the challenged opinions satisfy Rule 702. It then applies Rule 56 to the evidence it may properly consider.
The Rule 702 Committee Notes recognize that experts may reach different conclusions based on competing or disputed factual assumptions without either expert necessarily being excluded. Once Rule 702 is satisfied, some disagreements about assumptions, factual interpretations, or conclusions may concern weight rather than admissibility.
Even then, Anderson requires sufficient evidence for a reasonable factfinder to rule for the nonmoving party on the material issue under the applicable substantive law and burden of proof.
An expert report does not necessarily establish a genuine dispute of material fact. The cited expert evidence must address a material issue and provide sufficient support for the factual proposition offered. The proponent must also satisfy Rule 56's requirements for summary-judgment materials and, when relying on the expert opinion as testimony, the applicable requirements of Rule 702.
A report may be insufficient when, for example:
the opinion does not address an element material to the Rule 56 motion;
the opinion is too speculative or unsupported to satisfy Rule 702;
the expert lacks a sufficient factual basis for the relevant conclusion;
the expert does not reliably apply the stated methodology to the facts of the case;
the cited expert material cannot be presented in an admissible form; or
even with the expert opinion, the record remains insufficient for a reasonable factfinder to rule for the nonmoving party on the material issue.
Whether expert evidence is sufficient ultimately depends on the governing substantive law and the record as a whole.
Expert evidence used at summary judgment should be organized around the material factual issues and legal elements addressed by the motion.
Depending on the case, the expert may need to analyze:
medical, treatment, diagnostic, or exposure records;
plans, specifications, inspection records, photographs, or physical evidence;
testing, measurements, laboratory results, or engineering calculations;
accounting records, transaction data, economic information, or valuation materials;
product specifications, maintenance records, or failure evidence;
professional standards, industry practices, codes, or regulations; or
alternative explanations for causation, failure, or claimed loss.
The expert's analysis should distinguish factual assumptions from evidence established in the record and explain how the methodology or professional reasoning supports the opinion relevant to the summary-judgment issue. Credentials alone are not enough. The opinion must have an adequate basis and reliably apply the relevant methodology or expertise to the facts.
Counsel should also tie the expert evidence directly to the Rule 56 record by citing relevant reports, deposition testimony, declarations, and supporting materials specifically enough to show the factual basis for the motion or opposition.
Rule 56(d) may apply when a nonmovant has not completed expert-related discovery and cannot yet present facts essential to justify its opposition. The nonmovant must explain the specified reasons by affidavit or declaration.
The court may defer or deny the motion, allow additional time for discovery or affidavits or declarations, or issue another appropriate order. In expert-dependent cases, this may involve incomplete testing, expert depositions, or other factual development. Relief is not automatic and depends on whether the nonmovant satisfies Rule 56(d).
Rule 26(a)(2) disclosure requirements, scheduling orders, local summary-judgment rules, and court-specific procedures may also affect when and how expert evidence can be developed and presented.
Federal Rule of Civil Procedure 56 asks whether the record contains a genuine dispute of material fact requiring trial.
In expert-driven cases, that analysis may depend on whether the expert evidence supports a material issue, can be presented in admissible form, satisfies applicable Rule 702 requirements, and leaves sufficient evidence after any exclusion.
Competing admissible expert opinions may create a genuine factual dispute, but expert disagreement alone does not guarantee that a case will proceed to trial. The evidence must still be sufficient under the governing substantive law.
Can an expert report alone defeat summary judgment?
Not necessarily. The expert evidence must address a material issue and, together with the rest of the record, provide sufficient evidence for a reasonable factfinder to rule for the nonmoving party. Applicable Rule 56 and Rule 702 requirements must also be satisfied.
Must expert evidence already be in trial-admissible form at summary judgment?
Not always. Rule 56(c)(2) asks whether the cited material can be presented in admissible form. If challenged, the proponent must show that it is admissible as presented or explain the admissible form anticipated.
Do competing expert opinions automatically prevent summary judgment?
No. The court may need to resolve any material admissibility issue and then determine under Rule 56 whether the properly considered evidence creates a genuine dispute of material fact.
What happens if the court excludes the nonmoving party's expert?
Exclusion does not automatically require summary judgment. If the remaining record lacks sufficient evidence on an essential element, however, summary judgment may be appropriate.
What if expert discovery is not finished when summary judgment is filed?
Rule 56(d) allows a nonmovant to seek appropriate relief when specified reasons shown by affidavit or declaration establish that it cannot yet present facts essential to justify its opposition.
Rule 56(c) governs how parties support and challenge factual positions at summary judgment, including how expert evidence is cited and whether the court may properly consider it.
Under Rule 56(c)(1), a party may support or dispute a factual assertion by citing particular portions of the record, including depositions, documents, electronically stored information, affidavits or declarations, admissions, interrogatory answers, stipulations, and other materials. A party may also show that the cited materials do not establish a genuine dispute or that the opposing party cannot produce admissible evidence supporting a fact.
Expert evidence may appear in reports, deposition testimony, affidavits, declarations, testing materials, and other parts of the record. Its significance depends on whether the cited portions support a material fact relevant to the Rule 56 motion.
If an opponent objects under Rule 56(c)(2) that the cited material cannot be presented in admissible form, the proponent must address that objection.
Rule 56(c)(2) permits a party to object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. Summary-judgment materials do not always have to appear in the same form in which they would be introduced at trial. The question is whether they can be presented in admissible form.
The 2010 Advisory Committee Note explains that, once such an objection is made, the proponent must show that the material is admissible as presented or explain the admissible form anticipated at trial.
For expert evidence, this may require showing how the opinion can be presented in admissible form. Rule 703, however, permits an expert, subject to the applicable evidentiary requirements, to rely on facts or data that need not themselves be admissible if experts in the field would reasonably rely on that type of information.
Rule 56(c)(4) provides that an affidavit or declaration used to support or oppose summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the declarant is competent to testify about the matters stated.
When an expert submits an affidavit or declaration, the evidence rules governing expert testimony also apply. An expert need not personally observe every fact or item of data underlying the opinion and may rely on information permitted by Rules 702 and 703.
An expert declaration used at summary judgment should identify the opinions relevant to the material issue and provide enough information about their basis for the court to assess whether the testimony may properly be considered under Rule 56.
When challenged expert testimony is material to a summary-judgment motion, the court may need to determine whether it satisfies Federal Rule of Evidence 702.
The proponent must demonstrate to the court that it is more likely than not that:
the expert's scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert's opinion reflects a reliable application of those principles and methods to the facts of the case.
The 2023 Committee Note emphasizes that questions involving the sufficiency of an expert's basis and the reliable application of methodology cannot automatically be treated as matters affecting only weight. When expert admissibility is challenged or otherwise requires resolution, the court determines whether the applicable Rule 702 requirements are satisfied.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held that trial judges must assess the relevance and reliability of proposed scientific expert testimony. The Court also noted that summary judgment remains available when the evidence is insufficient for a reasonable juror to find for the nonmoving party under the applicable burden of proof. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), extended that gatekeeping responsibility to technical and other specialized expert testimony.
Exclusion of expert testimony does not automatically result in summary judgment. The key question is whether enough evidence remains on an element the affected party must prove, particularly when expert testimony is required by substantive law or is otherwise necessary to establish that element.
General Electric Co. v. Joiner, 522 U.S. 136 (1997), illustrates the interaction between expert admissibility and summary judgment. The district court excluded testimony offered to establish that Joiner's exposure to PCBs contributed to his cancer and entered summary judgment for the defendants. The Supreme Court held that abuse of discretion governs appellate review of expert-admissibility decisions and concluded that the district court did not abuse its discretion in finding the relied-upon studies insufficient to support the PCB-causation opinions.
The Court also made clear that its conclusions did not dispose of the entire case because issues involving alleged exposure to furans and dioxins, and related expert testimony, remained open on remand. Consistent with Celotex, if exclusion leaves a party without sufficient evidence on an essential element, summary judgment may be appropriate.
Competing expert opinions can create a genuine dispute of material fact, but they do not automatically prevent summary judgment.
If expert admissibility is disputed or otherwise requires resolution, the court may need to determine whether the challenged opinions satisfy Rule 702. It then applies Rule 56 to the evidence it may properly consider.
The Rule 702 Committee Notes recognize that experts may reach different conclusions based on competing or disputed factual assumptions without either expert necessarily being excluded. Once Rule 702 is satisfied, some disagreements about assumptions, factual interpretations, or conclusions may concern weight rather than admissibility.
Even then, Anderson requires sufficient evidence for a reasonable factfinder to rule for the nonmoving party on the material issue under the applicable substantive law and burden of proof.
An expert report does not necessarily establish a genuine dispute of material fact. The cited expert evidence must address a material issue and provide sufficient support for the factual proposition offered. The proponent must also satisfy Rule 56's requirements for summary-judgment materials and, when relying on the expert opinion as testimony, the applicable requirements of Rule 702.
A report may be insufficient when, for example:
the opinion does not address an element material to the Rule 56 motion;
the opinion is too speculative or unsupported to satisfy Rule 702;
the expert lacks a sufficient factual basis for the relevant conclusion;
the expert does not reliably apply the stated methodology to the facts of the case;
the cited expert material cannot be presented in an admissible form; or
even with the expert opinion, the record remains insufficient for a reasonable factfinder to rule for the nonmoving party on the material issue.
Whether expert evidence is sufficient ultimately depends on the governing substantive law and the record as a whole.
Expert evidence used at summary judgment should be organized around the material factual issues and legal elements addressed by the motion.
Depending on the case, the expert may need to analyze:
medical, treatment, diagnostic, or exposure records;
plans, specifications, inspection records, photographs, or physical evidence;
testing, measurements, laboratory results, or engineering calculations;
accounting records, transaction data, economic information, or valuation materials;
product specifications, maintenance records, or failure evidence;
professional standards, industry practices, codes, or regulations; or
alternative explanations for causation, failure, or claimed loss.
The expert's analysis should distinguish factual assumptions from evidence established in the record and explain how the methodology or professional reasoning supports the opinion relevant to the summary-judgment issue. Credentials alone are not enough. The opinion must have an adequate basis and reliably apply the relevant methodology or expertise to the facts.
Counsel should also tie the expert evidence directly to the Rule 56 record by citing relevant reports, deposition testimony, declarations, and supporting materials specifically enough to show the factual basis for the motion or opposition.
Rule 56(d) may apply when a nonmovant has not completed expert-related discovery and cannot yet present facts essential to justify its opposition. The nonmovant must explain the specified reasons by affidavit or declaration.
The court may defer or deny the motion, allow additional time for discovery or affidavits or declarations, or issue another appropriate order. In expert-dependent cases, this may involve incomplete testing, expert depositions, or other factual development. Relief is not automatic and depends on whether the nonmovant satisfies Rule 56(d).
Rule 26(a)(2) disclosure requirements, scheduling orders, local summary-judgment rules, and court-specific procedures may also affect when and how expert evidence can be developed and presented.
Federal Rule of Civil Procedure 56 asks whether the record contains a genuine dispute of material fact requiring trial.
In expert-driven cases, that analysis may depend on whether the expert evidence supports a material issue, can be presented in admissible form, satisfies applicable Rule 702 requirements, and leaves sufficient evidence after any exclusion.
Competing admissible expert opinions may create a genuine factual dispute, but expert disagreement alone does not guarantee that a case will proceed to trial. The evidence must still be sufficient under the governing substantive law.
Can an expert report alone defeat summary judgment?
Not necessarily. The expert evidence must address a material issue and, together with the rest of the record, provide sufficient evidence for a reasonable factfinder to rule for the nonmoving party. Applicable Rule 56 and Rule 702 requirements must also be satisfied.
Must expert evidence already be in trial-admissible form at summary judgment?
Not always. Rule 56(c)(2) asks whether the cited material can be presented in admissible form. If challenged, the proponent must show that it is admissible as presented or explain the admissible form anticipated.
Do competing expert opinions automatically prevent summary judgment?
No. The court may need to resolve any material admissibility issue and then determine under Rule 56 whether the properly considered evidence creates a genuine dispute of material fact.
What happens if the court excludes the nonmoving party's expert?
Exclusion does not automatically require summary judgment. If the remaining record lacks sufficient evidence on an essential element, however, summary judgment may be appropriate.
What if expert discovery is not finished when summary judgment is filed?
Rule 56(d) allows a nonmovant to seek appropriate relief when specified reasons shown by affidavit or declaration establish that it cannot yet present facts essential to justify its opposition.
Federal Rules of Civil Procedure
Federal Rules of Civil Procedure