A district court in Michigan has strictly enforced the requirement of Rule 26 of the Federal Rules of Civil Procedure that expert witness reports be prepared by the expert witness, and not by lawyers. The case is Numatics, Inc. v. Balluff, Inc., No. 2-13-cv-11049, 2014 WL 7211167, at *7 (E.D. Mich. Dec. 16, 2014). In a ruling excluding Defendants’ invalidity expert, the court strongly criticized the practice of lawyers drafting expert reports as “a remarkable breach of ethics and protocol.”
Plaintiff Numatics, Inc. filed a patent infringement suit against Defendants Balluff, Inc. and H.H. Barnum Company alleging infringement of U.S. Patent No. 7,967,646, related to a modular electrical fieldbus system intended to control the opening and closing of hydraulic and pneumatic valves. The Defendants hired a technical expert to provide testimony supporting their invalidity defenses. Their expert submitted a 64-page report on invalidity, asserting that the claims of the ’646 patent were obvious in light of various prior art references.
The Plaintiff moved to exclude portions of the expert report contending that the expert was simply unaware of the elements necessary to establish invalidity and that Defendants’ lawyers drafted the report in its entirety. During the hearing on the motion to exclude, lawyers for Defendants conceded that they had in fact drafted the expert’s report.
As a preliminary matter, the court found the expert to be competent in the field of the asserted patent. However, the court decided that the expert “had surrendered his role to Defense counsel,” and stated that is “not how the adversary process works.” The court pointed out that Rule 26 of the Federal Rules of Civil Procedure states that expert testimony “must be accompanied by a written report––prepared and signed by the witness.”
The court acknowledged that expert witnesses are not lawyers, and that an expert may not understand fully the required components of an expert report. This requires a lawyer to explain these requirements and identify the subject matter to be covered. However, the court held that preparing the expert’s opinion from “whole cloth and then asking the expert to sign it if he or she wishes to adopt it is not permissible under Rule 26.”
Calling the Defendants’ expert a “highly qualified puppet,” the court criticized him for spending only eight hours reviewing the report and stated that he had adopted “the attorney’s report—that is the only reasonable way to describe it—in its entirety.” The court further noted that the expert had devoted only two or three hours to reviewing 2,600 pages of deposition transcripts and a total of less than 30 hours developing his opinions about the case, nearly half of which was spent traveling for the case.
The court further noted that the expert report was indistinguishable, down to the punctuation, from Defendants’ invalidity contentions, which were disclosed several months before the expert signed the report. The court concluded that Defendants had violated Rule 26, and Rule 37 vehicle required excluding the expert from the case.
The Numatics decision is a reminder to lawyers that we must be mindful of our role in the drafting of expert reports. Lawyers are allowed to assist the expert in the fine tuning of an expert’s report, but should not draft the report or even take the major role in drafting the report. The bottom line is that the expert’s report must represent that person’s own commentary. If the expert doesn’t know all about Rule 26 and other legal principles that apply to the reports by experts, it’s the lawyer’s responsibility to make sure he or she does.
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