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 counsel. Numatics, Inc. v. Balluff, Inc., No. 2-13-cv-11049, 2014 WL 7211167, at *7 (E.D. Mich. Dec. 16, 2014) (Lawson, J.). In a ruling excluding defendants’ invalidity expert, the court strongly criticized the practice of counsel drafting expert reports as “a remarkable breach of ethics and protocol.”1

Background

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. Defendants hired a technical expert to provide testimony supporting their invalidity defenses. The 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. Plaintiff moved to exclude portions of the expert report arguing that the expert was simply unaware of the elements necessary to establish invalidity and that defendants’ counsel drafted the report in its entirety. During the hearing on the motion to exclude, counsel for defendants conceded that they drafted the expert’s report.

Exclusion of Expert from the Case

As a preliminary matter, the court found the expert to be competent in the field of the asserted patent. The court however decided that the expert “had surrendered his role to defense counsel, and that is not how the adversary process works.”2 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.”3 The court acknowledged that expert witnesses are not attorneys, and they may not apprehend the required components of an expert report, requiring counsel to explain these requirements and identify the subject matter to be covered. The court held however 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 faulted him for spending a mere eight hours reviewing the report and adopting “the attorney’s report—that is the only reasonable way to describe it—in its entirety.”4 The court 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 required excluding the expert from the case.

Practice Tips

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. In the end, the report must represent the expert’s own commentary. It is also important to educate the expert upfront on Rule 26 and other legal principles relevant to the report being drafted. Lastly, the expert needs to be educated on the importance of properly documenting time spent on the report, and needs to understand that time entries may be scrutinized as evidence of the amount of effort that he/she has devoted to the report.