A “spooky” post for Halloween is a good way to close Expert Witness Month. If you have practiced long enough, you have probably had the thought, “it would be a lot easier if I just wrote the expert’s report.” There are some upsides! You could save money on the expert, the report would assuredly hit all the key points and the expert still signs off. It all seems like a good idea! It really isn’t.
A-11-636691-C is a medical malpractice case. The plaintiff moved to strike the defense expert. Why? Part of the deposition was read during oral argument and said, in reference to the expert’s report:
Q: Now, do you know who wrote it?
A: I don’t know who wrote it. Someone from Bonne Bridges said we summarized your findings, do you agree with this? I read through it. There are some statements that I make that I look back now I don’t have any backing for.
Transcript at 13:1-4 (filed June 10, 2013 and available on Odyssey). Based upon the transcript, the hearing was somewhat awkward. I have not read the briefing.
First, the court was not impressed.
I think is was probably pretty — I’m trying to come up with a politically correct word for stupid — thing to have defense counsel’s firm, someone in the firm prepare the report for the expert based upon apparently many conversations that he had with whoever this person was, and especially when you were paying him, according to his deposition — I don’t know if this was a type or true, $17,000….
Id. at 3:19-24. “When you submit — you submit a report and then the expert says, well, yeah, somebody else prepared it based on phone calls, and you know, now I have all these other opinions. I mean, that’s a big problem.” Id. at 23:4-7. Even so, this was not necessarily “false” testimony. “But it was also very clear from his testimony that he said he read it, he said he read it thoroughly and signed it, and that it did represent what he told this person on the phone. So to me … I am not persuaded that this was a false report. It may be a bad report.” Id. at 4:5-8. The court was also not a fan of the literature review. “And certainly I was singularly unimpressed with ‘Mommy and Me’ as the literature, you know, that he relies upon off the Internet. I mean, its sort of like citing to Wikipedia.” Id. at 5:20-22.
Defense counsel’s response intrigued me. “Probably the expert and the expert’s report, it was stupid, but its the way its done.” Id. at 26:23-24. It intrigued the court too. “Well, this is news to me because I practiced personal injury defense work for years and never did I ask a doctor to — did I prepare a report for a doctor. Never.” Id. at 27:12-14. I am in the same position as the court. I have never drafted a report for an expert. I admittedly do not often handle medical malpractice cases like this one, but when I have I do not prepare the expert’s report.
Plaintiff’s counsel did cite at least one authority that is on point. Play Visions, Inc. v. Dollar Tree Stores, Inc.,2011 U.S. Dist. LEXIS 61336, 2011 WL 2292326 (W.D. Wash. 2011) encountered a similar issue in the context of a patent dispute. As a disclaimer, I represent Dollar Tree in Nevada, but obviously not in Washington.
I wish I did based upon the billings described in the opinion.
An expert must independently draft and edit his own report, not merely review counsel’s idealized version of what such a report may contain. That [the witness] was confused about when he may have participated in the expert report’s creation is evidence enough that his involvement was marginal in a process that he should have driven. This was not proper. The Court also questions the usefulness of an expert report drafted by the party itself, where its objectivity is easily questioned.
(emphasis in original). This statement was not supported by a citation to rule or other authority. Still, the court’s point is still that drafting your own expert’s report probably is not such a good idea.