Who is Really Writing the Expert Report?
Expert reports are a staple in many litigated matters. A good report should clearly convey the opinion and provide sound reasoning for the basis of the opinion. It is to be expected that an attorney and the expert will work together to formulate the expert opinions and ultimately to author a report. But how much input may an attorney provide? Federal Rule 26 clearly states that the expert report is to be prepared and signed by the witness. Nothing in the rule prohibits counsel from helping the witness. But, it’s not completely clear from the rule exactly what level of involvement is permissible. A recent federal case sheds some additional light on this issue.
In Numatics, Inc. v. Balluff, Inc., 2014 U.S. Dist. LEXIS 176759, 1 ( E.D. Mich. Dec. 16, 2014), the defendant’s expert was precluded from testifying because he did not furnish a report that approximated his original work. At his deposition defendant’s expert admitted that he did not draft the 64-page report, but rather it was established that he only reviewed the report which was drafted by defense counsel and made only “fairly minor” changes. The court criticized the expert for the minimal amount of time actually spent on the case. Evidence was presented that the expert implausibly reviewed 2,600 pages of depositions transcripts in two to three hours and spent less than 30 hours total developing his opinions on the case, the majority of which was spent traveling.
Also troubling to the court was that when pressed the expert admitted to having a “complete lack of knowledge about the factors relevant to assessing” his ultimate opinion in the case. Accordingly, because the expert could not apply the facts of the case to the principles upon which his opinion was based, the court found that he could not testify as an expert.
Numatics makes clear that while attorneys may help “prepare” an expert report, this should not be taken as a license to write the report. The final report needs to be an accurate representation of the expert’s opinions. Attorneys need to be mindful of their role in drafting expert reports. As the Numatics court noted the assistance attorneys may provide is generally limited to ensuring the formal requirements of Rule 26 are satisfied. Knowing the boundaries of the attorney’s role is one of the factors in deciding whether the opinion is admissible.