Pages

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!

18 comments:

  1. Ghost writing is the process of writing an article, book or anything else on behalf of another party - when the texts are officially credited to that other party. Ghost writers are the people who normally do this, and they are typically hired by executives, celebrities, politicians and even musicians. ghost writing paper

    ReplyDelete
  2. Hello Kate McMahon,
    This is really very informative article you posted here on Expert Reports - Ghost Writing Redux. I read your writing and enjoyed much. Previously I got such kind of nice information from Rushessay.com . Thanks for your nice presentation.

    ReplyDelete
  3. The case is nice indeed as it mentioned very interesting point. This quote “the expert was sufficiently experienced to opine on the issues of the case” provides weight of the matter. Here highly qualified puppet is also remarkable. Chinese tutor Singapore helps to get such kind of scope to be learned person.

    ReplyDelete
  4. Thanks Mcmahon for talking about ghost writing. You start or blogged three month ago about this. I seen your post and read very carefully. It is true the major lesson attorney. I want to know more about best ghostwriters online service.

    ReplyDelete
  5. There are the reports presented in this section for the ghost writing reduce. You can manage your work by write a grievance letter and enjoy the best deal for your work. With the Mason and the Associates you can get your work done in an easy way.

    ReplyDelete
  6. In this form of the Matson and associates you can enjoy your life in a better way. Come into the area of http://www.bestghostwriting.com/about-us/ and get all of the basic information easily. Give your reviews about this article so that more people can gather the help for this.

    ReplyDelete
  7. You will find the actual reviews offered with this area for that ghosting composing decrease. You are able to handle your projects through explore more and revel in the very best offer for the function. Using the Builder and also the Affiliates you will get your projects carried out within a good way.

    ReplyDelete
  8. It is important for check the ghost writing redux. And we also saw the reports of the experts which is best for our best site. And hope they way we read this is the best.

    ReplyDelete
  9. In expert reports you have analyzed the writing area to explore more for the writers. Obviously you are not agreeing with this report, but the reports you you the previous of the work.

    ReplyDelete
  10. Once I was really wanted to be a ghost writer as there has a lots of view from being a ghost writer and it is really for people. only here you'll be get the best ideas.

    ReplyDelete
  11. This is the one of the most useful blog of ghostwriter. The name of the blog is matson .This includes some links for the ghostwriter. Thanks for the post. https://www.bestghostwriters.net/cheap-ghost-writers-for-hire-in-germany/ You can find more info here

    ReplyDelete