Attorneys Ghostwriting Their Expert's Reports

May an attorney draft his expert’s report?    

The recent Numatics v. Balluff, 13-CV-11049 (E.D. Michigan) (Dec. 16, 2014) opinion delineates the scope of attorney "assistance" in preparing expert reports in the wake of last year's Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa. 2014) ruling - - codified into Pa. Rule of Civil Procedure 4003.5 - - shielding attorney and expert communications from discovery by the attorney work-product doctrine.

Prior to the new rules, because communications between a party's attorney and his testifying expert were routinely obtained through discovery, an attorney's guidance and input into his expert's report could often be tracked.  While bringing Pennsylvania practice in line with federal expert discovery rules, the Barrick decision and Rule 4003.5 fail to clarify whether an attorney may draft his expert’s report as long as the expert's theories are incorporated therein. 

Numatics v. Balluff Opinion

 Numatics involved an “infringement of technical patent” dispute in which plaintiff moved to exclude defense’s expert liability opinion arguing that the report was wholly written by defense counsel and the expert was "unaware" of elements necessary to establish "invalidity defense". 

After recognizing that an attorney may "assist" in report preparation, including coaching expert to ensure that the report touches all legally required bases, the Numatics Court scolded counsel for drafting the report merely to have the expert "review and sign". 

The Numatics Court was unpersuaded by defense counsel’s claim of only reviewing and correcting report portions inconsistent with his case view, deeming it insufficient to make report actually authored by expert following expert's testimony that, if he had written it, the report would have only been 5 pages and omitted the "legalness".

The Numatics Court was also troubled by expert’s spending only 2 or 3 hours reviewing 2,600 pages of depositions, less than 8 hours reviewing technical literature, and half of his 30 case hours at or traveling to defense counsel's office.

 

After noting that report’s “obviousness” section was "nearly indistinguishable" from counsel’s prior attorney-drafted contentions, the Numatics Court precluded the testimony of the expert, whom it deemed a "highly qualified puppet".

Pennsylvania Expert Report Ghostwriting 

While differing from the more restrictive Federal “disclosure of attorney-expert communications” rules, post-Barrick Pennsylvania practice is now more limited in its disclosure requirements. 

While Federal Rule of Civil Procedure 26(a)(2)(B) states that the report must be "prepared" and "signed" by the expert, Pennsylvania’s equivalent, Rule 4003.5, only requires that "answer [to expert interrogatories] or separate report shall be signed by the expert", omitting the word "prepared" does not authorize attorneys to write the expert's report.  

Although the general rule is that attorneys can fine-tune reports to comply with submission’s technical legal requirements (i.e., formatting, legal elements and scope), an attorney may not assume expert's role in preparing and drafting the report, the final draft of which must form a true representation of expert's own thoughts and conclusions. 

Additionally, although attorney-expert communications are protected, because expert time sheets and compensation are increasingly scrutinized, properly documenting and allocating time spent on the file is critical.