The past few posts here at the Monitor have been devoted to expert issues, so why not keep the streak alive, albeit with a twist? We wanted to call your attention to a recent ruling out of the Eastern District of Michigan in which the court excluded an expert and rebuked counsel for its role in drafting the expert’s report. See Numatics, Inc. v. Balluff, Inc., No. 2-13-cv-11049, 2014 WL 7211167, at *7 (E.D. Mich. Dec. 16, 2014) (Lawson, J.). The case serves as a cautionary tale, reminding counsel to heed the letter and intent of the Federal Rules when working with experts.
First, some background. The plaintiff, Numatics, Inc., filed a patent infringement suit against Balluff, Inc. and H.H. Barnum Company alleging infringement of a patent on a system intended to control the opening and closing of hydraulic and pneumatic valves. The defendants retained a technical expert to provide opinion testimony in support of their invalidity defenses. The expert submitted a report in which he asserted that the claims in the Plaintiff’s patent were obvious in light of various prior art references. The plaintiff responded by, inter alia, moving to exclude the expert’s report, asserting that it had been drafted by defense counsel. In an astounding move, defense counsel conceded that they drafted the expert’s report. Perhaps not surprisingly, things went downhill from there.
On the bright side, the court found the expert to be competent in the field of the asserted patent. That victory, however, was Pyrrhic, because the court also concluded that the expert “had surrendered his role to defense counsel, and that is not how the adversary process works.” Id. at *4. As the court noted, Rule 26 of the FRCP states that expert testimony “must be accompanied by a written report––prepared and signed by the witness.” Id. at *5 (quoting Fed. R. Civ. P. 26(a)(2)(B)) (emphasis in original). The court further stated that even though an expert may not grasp all the required components of an expert report, it is impermissible under Rule 26 for counsel to draft the expert’s report and then ask the expert to sign it. Dispensing with the usual judicial pleasantries, the court labeled the defendants’ expert a “highly qualified puppet,” faulting him for spending just eight hours reviewing his report before signing his name. The court also assailed the expert for taking only two or three hours to purportedly review 2,600 pages of deposition transcripts, and for spending less than 30 hours developing his opinions, nearly half of which were spent traveling for the case. The coup de grace (beyond counsel’s admitted ghost writing), though, was the court’s observation that the expert’s report was identical to invalidity contentions disclosed by the defendant several months before the expert signed his report. The court thus concluded that the defendants had violated Rule 26 and Rule 37 required excluding the expert from the case.
This may be a good time for some takeaway lessons. Numatics is a reminder that counsel should educate the expert about, and be mindful of, the strictures of Rule 26. In particular, counsel must remember that he or she is allowed to assist the expert in the fine tuning of his or her report, but may not take a significant role in drafting the report. The report must reflect the expert’s own thoughts and opinions. Counsel should also explain to the expert the importance of properly documenting time spent reviewing materials and preparing the report. The expert should understand that time entries may be scrutinized as evidence of the amount of effort that he/she has devoted to the report.
Our suggestions may seem rudimentary and self-evident. Numatics, however, suggests that it’s never a bad time for practitioners to refresh their memory about the basics.