Product liability cases often present challenging and complex issues which require the use of experts. If you are litigating in federal court, any expert you designate will be required to provide a written report. The same, however, may not be true in state court. For example, written expert reports are not required for designated experts in California and Texas. In New York, not only are expert reports not required but, even if one is made, it is not discoverable absent court order. Other jurisdictions only require the disclosure of certain information. And some jurisdictions, although they do not require that an expert report be prepared, if an expert report is prepared, even draft reports may be discoverable. Thus, as a starting point, it is imperative that you check the rules of your jurisdiction. If you are in a jurisdiction where full expert reports are not required, deciding whether to have your expert prepare a written report in a products case is a decision of critical importance and should not be made lightly. This blog post explores some important considerations to take into account when making this important decision, as well as some suggestions to ensure that any written report is as airtight as possible.
You might be thinking this is a no brainer: preparing a report is definitely going to be more costly than not. You probably are right, but there are situations in which the preparation of an expert report could save time and money later down the road. For example, a detailed and very strong report may help you leverage a settlement if you can strategically use it to educate the other side about the product at issue and the strengths of your case (and the weaknesses of theirs). In other words, the weight of force behind an expert’s particular opinion might be so overwhelming that you can use that to your advantage. For example, in a recent black mold case we handled, the force of evidence showing years upon years of research regarding mold toxicity (or lack thereof) was such that the opposing party was forced to try a new and novel theory to prove causation. Additionally, a detailed report may shorten the amount of preparation needed for deposition in that your expert already has a very detailed roadmap outlining his or her opinions.
That said, a starting point for deciding whether to have your expert prepare a report is to first have the expert conduct his or her review without reducing anything to writing. This limits the written record and what you might have to turn over once the expert is designated and disclosed (again, check the rules of your jurisdiction). Once you have an understanding of the expert’s opinions, you can then make a determination of whether or not to reduce them to writing. Information that will be useful in this decision is how lengthy and detailed a report does your expert typically prepare? How much time does she or he estimate will be involved? Make sure you discuss anticipated rebuttal opinions as you may well want to leave those out if you are able. It is prudent to discuss this with your client before committing to a written report, particularly in a jurisdiction where a written report is not required. Also keep in mind that the report itself is hearsay. This may also factor into your decision and any cost/benefit analysis regarding the report.
As an alternative to a full written report, you might consider having the expert prepare a one page document which simply lists the opinions he or she intends to offer. This is not a written report per se, but rather a document which can be presented at deposition. This can be a good alternative to a full report in that it sets forth the key opinions and provides a framework, yet does not commit your expert in writing to greater detail and forces opposing counsel to undercover the basis for the opinions at deposition.
If you choose to have your expert prepare a full written report, it needs to be airtight (or as airtight as realistically possible). The report must be free of errors and all evidentiary support and citations must be correct and up to date. Keep in mind the adage: “trust, but verify.” You will want to make an effort, to the extent possible, to check your expert’s work. You might consider looking at some of the articles and studies relied on. Do they say what the expert claims? If your expert relies on or cites to case law, confirm that it is supportive. Additionally, try to leave your expert with some room by strategically using phrases such as “preliminary” or “pending further information.” In any case, the last thing you want is for your expert to be confronted by errors in his report either at deposition or during trial. The Stallings case illustrates this. A central issue in Stallings was the installation of riving knives on circular saws in order to prevent kickback. Kickback can occur with a circular saw when the saw is cutting into a knot or nail and it becomes bound with that material. In Stallings, the decedent had been using a circular saw not equipped with a riving knife or other anti-kickback device when the saw experienced kickback and fatally cut the decedent’s throat. The administrator of the decedent’s estate brought an action against the manufacturer of the saw, Black & Decker. One of plaintiff’s experts prepared a written report in which he stated that he had tested a Black & Decker saw with a riving knife and determined that it was not detrimental to the saw’s function. In fact, this expert had not tested such a saw before preparing his report and this fact came to light at deposition. Black & Decker used these facts to argue that plaintiff’s expert was not qualified on the basis that his opinion was unreliable and inadmissible based on the fact that the expert had not done any testing before arriving at his conclusions. Based on this, and other factors, the Court agreed and granted summary judgment in favor of Black & Decker.
To this end, insist that any report is discussed in detail with you and that you are given ample time to review it and question it prior to production. Play devil’s advocate and take on the role of opposing counsel in reviewing the report. How will opposing counsel attack this report and what are the weak points that your expert must be prepared to shore up? Going through this exercise will ensure that the report is as strong as possible and that your expert is prepared for cross-examination. We all spend time preparing to poke holes in the opposing expert’s opinions, but it is important to put your own expert through a similar process.
Also, be careful if your expert happens to be the only source of a particular opinion or his or her conclusions are the foundation for the opinions of others. What can go wrong is illustrated by a recent, albeit extreme, example addressed in a recent post by Rachel Weil in the Drug and Device blog. As Ms. Weil explains, there is a particular group of Mirena intrauterine device cases in which the plaintiffs allege that their use of the Mirena IUD caused them to develop idiopathic intracranical hypertension (“IIH”). IIH is a condition characterized by increased pressure within the spaces that surround the brain and spinal cord. Plaintiffs’ expert, Dr. Mahyar Etminan, was the lead author of the only published study linking Mirena to IIH. Unfortunately for plaintiffs, it turned out that Dr. Etminan’s study was fatally flawed in a number of respects, not the least of which was that Dr. Etminan had an undisclosed conflict of interest. In December 2016, Dr. Etminan executed an affidavit in which he admitted that his prior conclusions were not supported and that when the analysis was properly redone, the results did not support the conclusion that Mirena causes IIH.
Although highly unusual in its severity, the Mirena case example above illustrates the need to thoroughly prepare and vet your experts and the foundations upon which they are basing their opinions, particularly if they are reducing those opinions to writing or have done so in the past. As part of the vetting process, you should be aware of written reports prepared by your expert in other matters and evaluate interplay with the report in your case. For example, has your expert ever take a position contradictory to the one he or she is taking in your case? If so, be sure that you review that prior report and that your expert is prepared to explain the contradiction. Also consider whether any contrary position is amplified by the preparation of a written report in your matter. If so, this will factor into your decision of whether to have a written report prepared in the first place.
As is illustrated above, the decision of whether to forgo an expert report in your products cases in jurisdictions which do not require it is an important one and one which requires careful and measured consideration and a full understanding of your expert and his or her opinions. This is not to be made lightly or simply by the attorney, but rather must be considered with the client.