Tuesday, February 24, 2015

Expert Reports - Ghost Writing Redux

Photo Credit: Brad Shorr
Three months ago we blogged about whether expert reports can be ghostwritten by attorneys.

While the answer is still no, recent coverage of a patent infringement case by attorneys of Akin Gump Strauss Hauer & Feld LLP provides further proof of the consequences. In Numatics, Inc. v. Balluff, Inc., No. 2-13-cv-11049, 2014 WL 7211167 (E.D. Mich. Dec. 16, 2014) the district court in Michigan excluded the defendant’s expert after defendant’s counsel admitted that they drafted the report. You can read the coverage by Akin Gump here, but their conclusion is worth repeating:

“The Numatics decision is a reminder that attorneys need to be mindful of their role in drafting of expert reports. Attorneys are allowed to assist the expert in the fine tuning of an expert’s report but may not take a significant role in drafting the report.”

…Like writing the whole thing.

In addition to that, there are several interesting points in this case. First, the expert was sufficiently experienced to opine on the issues of the case. In fact, the court called him a “highly qualified puppet” and further emphasized that “[h]e may indeed be competent to provide testimony in support of the invalidity defenses in this case.” Second, in its decision, the Court cited several other recent cases where courts have excluded experts for wholly adopting the assertions of attorneys, indicating that this phenomenon may be more pervasive than one might think. For example, in James T. Scatuorchio Racing Stable v. Walmac Stud Mgt., LLC, No. 5:11-374-DCR, 2014 WL 1744848 (E.D. Ky. Apr. 30, 2014), “the court refused to allow an expert to testify because the expert did not draft his own report. Instead, counsel for the defendant drafted the report and gave it to the expert to review. The expert met with counsel for the defendant for 60 to 90 minutes, printed the report on his own letterhead, and signed it,” (cited in Numatics, Inc. v. Balluff, Inc). 

Another case that the Numatics court cites is In re Jackson National Life Insurance Company Premium Litigation, No. 96-MD-1122, 2000 WL 33654070 (W.D. Mich. Feb. 8, 2000). In that case it appears that the attorneys not only prepared the expert’s report, but were doing so in other cases as well. “The court found ‘substantial similarities’ between the expert's report and the report of another expert prepared with assistance from the same counsel in an unrelated case,” (Numatics, Inc. v. Balluff, Inc.). 

Perhaps attorneys are trying to keep costs down or don’t trust their experts; or perhaps experts are too busy or lack good communication skills; either way the end result will likely be the same regardless of the motivations for attorney-ghostwritten reports. For it is nearly impossible for experts to demonstrate to the court they were unbiased and objective when forming their opinions if the attorney, an advocate for his or her client, is the one forming the opinions instead.  The ultimate consequences can be quite damaging: the loss of an expert who is excluded can cost the party its case, and can tarnish an expert’s credibility, perhaps irrevocably. 

Obviously, the major lesson is that an attorney must not draft an expert’s report; no matter how credentialed an expert is. Certainly, as the courts note, experts and attorneys can consult about the expert report – does it fit with case strategy, are all the important points covered, does it meet the court’s requirements for expert reports (state court vs federal court)? There a number of resources for experts on how to write a strong expert report to avoid a successful Daubert challenge. An attorney’s concerns can be alleviated if an expert has a strong draft.  Likewise, frequently communicating with attorneys on deadlines can help avoid the pressure to rush. Ultimately, even if this is a trend that continues, make sure it’s not one you sign off on!


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