When Attorneys Ghostwrite Experts' Reports

How much attorney involvement in the drafting of experts' reports is permissible? Must the entire work product be that of the expert? Or, at the other extreme, would it be acceptable for an attorney to draft the entire expert's report with the expert “adopting” it? And, if at least some lawyer input is tolerable, then what is the boundary line between permission and perdition?

These questions are perhaps better targeted at practice in federal courts where Federal Rule of Civil Procedure 26(a)(2)(B) calls for disclosure of experts retained or specially employed to provide expert testimony and which “must be accompanied by a written report prepared and signed by the witness.” The words “prepared and signed by the witness” arguably could signal that an expert's report which was primarily ghost-written by a litigant's attorney is taboo. Were the report to be so tainted, the disclosure required by Rule 26(a)(2) might fail and the expert could be barred. Or so the argument could go.

State Courts

In New York state courts, for example, expert disclosure proceeds differently so that the questions posed at the outset arguably may not raise front-burner issues. CPLR ' 3101(d)(1) requires “each party” to identify each expert expected to be called as a witness and “shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications ' and a summary of the grounds for each expert's opinion.” Unlike the expert's report in federal practice, which calls for the expert's preparation and signature, the CPLR calls for a mere statement by the party. Thus, many attorneys forego sending opposing counsel a formal letter or report signed by the expert. Since what is disclosed is a statement by the party, it seems normal for the attorney to have significant input in the draftsmanship.

Despite the absence of expert-signature formalities in state disclosure practice, the question of attorney ghostwriting of experts' opinions is not totally eliminated, however. Explicit in the obligation to disclose experts' opinions is the need for the opinion actually to be that of the expert. For example, CPLR 3101(d)(1)(i) refers to producing a summary of the grounds “for each expert's opinion.” The quoted language clearly contemplates that it be the expert's opinion.

Further, even without such explicit reference to the expert's opinion, one would implicitly expect from the context of the provision that it must be the expert's opinion, not the lawyer's, that is to be disclosed.

'Adopted' Opinions

If the opinions actually were ghost-written by the lawyer, arguably, they might not truly be the expert's opinion. If an opinion is articulated by the lawyer and “adopted” by the expert as his or her own, some sticky questions might ensue, depending on the circumstances. For example, under state practice, an expert may rely upon professionally reliable hearsay in forming his or her opinion. But an attorney-drafted opinion or conclusion regarding a scientific matter in which the attorney has no expertise would hardly amount to professionally reliable hearsay. Thus, technically, were an expert to rely on the attorney's formulation for expressing an opinion, that methodology may be inadequate. The expert's mere “adoption” of the attorney's opinion as his or her own without some independent exercise of professional judgment or expertise or some personal professionally based intellectual grappling with the problem, would simply camouflage the lawyer as the “expert” and render the expert as a mere “conduit” for the lawyer's wishful conclusions. New York decisions have held that an expert's opinion that amounts only to “conduit hearsay” is highly problematic.

Nevertheless, it is possible that some experts will simply adopt the lawyer's draftsmanship of an opinion and its underlying reasoning. The litigation field is, in many respects, an industry in which experts must perform well and satisfy retaining attorneys. To do this, an expert must deliver reports and conclusions that keep the case alive, hold up well during depositions, and testify effectively at trial. As in any service profession, the expert aims to please his or her client and seeks repeat business and enthusiastic referrals.

'Supervening Domination'

This motivational chemistry could yield rather hasty approvals of lawyer-crafted opinions by some experts. One federal court, speaking about lawyer-inserted changes to an expert's draft report, emphasized that lawyers do not “have license to change the opinions and reports of expert witnesses. Any changes in the preparation of a report must be what the expert himself has freely authorized and adopted as his own and not merely for appeasement or because of intimidation or some undue influence by the party or counsel who retained him.” Marek v. Moore, 171 F.R.D. 298, 302 (D. Kan. 1997) (finding nothing to suggest “supervening domination” by the attorney over expert). Thus, the potential for the lawyer's “supervening domination” exists.

Still, these ruminations may seem theoretical to some since few experts are likely to admit that all they did was “adopt” and parrot the attorney's opinion. Minimally, an expert incorporating a lawyer's formulation of an opinion will likely assert that the conclusion was his or her own after due consideration of the facts, grounds and bases. So, the mechanism of CPLR 3101(d) disclosure may not pose the same tensions that attorney ghost-writing does under Federal Civil Procedure Rule 26(a)(2).

Nevertheless, the questions posed above arguably might apply frontally to ghost-written expert affidavits offered in support of or opposition to motions for summary judgment. State practice regarding such expert submissions would seem to be implicated, since the expert would be signing the affidavit with the force and formality of an oath and representing that the statements and conclusions are his or her own. Would an entirely ghost-written affidavit offering opinions formulated by the attorney truly pass muster? There may be some room for inquiry as the ensuing discussion suggests.

Federal Case Law

Case law on the federal side of the issue is not plentiful, but it has evolved into a respectable body of precedent that offers some guidelines. Spearheading our discussion here is Hoskins v. Gunn Trucking, 2009 U.S. Dist. LEXIS 83630 (N.D. Ind. Sept. 14, 2009). The case involved a plaintiff's claim for personal injuries in an automobile accident.

One of the issues was causation and permanency of the injuries alleged, since the plaintiff also had been injured in two prior accidents. The plaintiff's medical expert was Dr. K, but the physician had no prior experience in testifying as an expert. In preparing an amended Rule 26 disclosure, the plaintiff's counsel drafted a report, provided it to Dr. K, and wrote: “Thank you for agreeing to provide a revised report ' . In hopes of saving you time, we drafted the attached report for you to consider for formatting purposes. Please make as many changes, corrections or additions to the report that you see appropriate for accuracy and completeness ' Let me know once you've completed your report ' .”

Lawyer's Input

The plaintiff's counsel admitted to drafting the report, but explained that the opinions originated with Dr. K during an in-person conference before any work on the report began. Even though the lawyer did “pen” the report, he asserted that it reflected Dr. K's analysis and that Dr. K thereafter “reviewed, corrected and added” to the report before signing it. A line-by-line comparison revealed that the report drafted by counsel was substantially similar to Dr. K's signed report.

A number of the differences were merely stylistic and grammatical ' inserting commas and replacing common language with medical terminology ' but did not alter the substance of the report. However, the final report did include a substantive addition regarding a surgery the plaintiff underwent at an earlier time and her recovery, a medical situation at issue in the lawsuit. The substance of Dr. K's opinions and conclusions, as well as their underlying basis and reasons “remain essentially the same in the final version of the report as in the first.”

The district court framed the issue: Did Dr. K's expert report, drafted by counsel, comply with the disclosure requirements of Federal Rule 26? Since the written report must be “prepared and signed by the witness,” the defendant contended that Dr. K's report was noncompliant having, in effect, been ghost-written by plaintiff's counsel. The plaintiff countered that the report reflected Dr. K's opinions and analysis. The plaintiff also asserted that any error was harmless because the plaintiff did not object to defendant's deposing Dr. K, even though discovery was closed.

Reviewing precedents, the court noted some guidelines. Compliance of the report with Rule 26 “is not based on who actually penned an expert report but, rather, whose opinions and analysis the report contains.” While attorney involvement in the preparation of an expert report is permissible, the expert “must substantially participate in the preparation of the report.” Citing Manning v. Crockett, 1999 U.S. Dist. LEXIS 7966, 1999 WL 342715 (N.D. Ill., May 18, 1999), the court further observed 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, conflicts with Rule 26(a)(2)(B)'s requirement that the expert prepare the report.”

“Preparation” implies involvement other than “perusing a report drafted by someone else and signing one's name at the bottom to signify agreement.” In other words, the assistance of counsel contemplated by Rule 26(a)(2)(B) “is not synonymous with ghost-writing.” Thus, in Bekaert Corp. v. City of Dyersburg, 256 F.R.D. 573, 579 (W.D. Tenn. 2009), the expert's testimony was excluded where the report was wholly prepared by counsel, the expert could not actually identify any portion of the testimony that was his, and the expert's participation amounted to signing the document after reviewing it.

In In re Jackson Nat'l Life Ins. Co. Premium Litigation, 2000 U.S. Dist. LEXIS 1318, 2000 WL 33654070 (W.D. Mich. Feb. 8, 2000), the court found Rule 26 was violated where substantial similarities were found in reports provided by different experts in unrelated cases, yet drafted by the same counsel, and it was clear that the language of the report and formulation of the opinions was provided to the experts by counsel. In the Hoskins case, however, Dr. K had never before testified or been deposed. She needed assistance to meet Rule 26's requirements and plaintiff's counsel “was entitled to, if not obligated to, provide that assistance.”

Dr. K seems to have reviewed the attorney's draft report carefully, for, as mentioned above, she made grammatical corrections, as well as some substantive changes. The final report was not “identical” to counsel's work. Citing a 2008 decision by the U.S. Court of Appeals for the Sixth Circuit in United States v. Kalymon, 541 F.3d 624, 637-38 (6th Cir. 2008), the district court observed that “a party's attorney can reduce an expert's oral opinion to writing so long as the report reflects the actual views of the expert.” Thus, Dr. K's in-person conference with plaintiff's counsel, in which she shared her opinions to be reflected in the report written by the attorney, combined with her review and revision of the report, complied with the type of “preparation” required in Rule 26(a)(2)(B).

Deposition Ordered

The court next regarded the question whether, even if the report were noncompliant, the failure was harmless: 1) Here there was no prejudice or surprise to defendant. The identity of Dr. K was timely disclosed, and the report was substantively adequate, except for counsel's drafting. The report fulfilled its purpose of informing defendant of the substance of Dr. K's expected testimony and the reasons for it. There was no evidence of bad faith on the part of the attorney, especially in light of Dr. K's inexperience as an expert testifier; 2) The trial, yet to be scheduled, would not be disrupted; and 3) Further, the party had the ability to “cure the prejudice” and thus offered Dr. K for deposition. The court accepted this alternative suggesting that it would “ensure the goal of Rule 26 is achieved ' .” Accordingly, defendant would be allowed to depose Dr. K “regarding the report's contents and creation.”

The notion that merely allowing the expert to be deposed can cure violations of Rule 26 disclosure is not without potential criticism. Thus, in Ciomber v. Coop. Plus Inc., 527 F.3d 635, 642 (7th Cir. 2008), the Seventh U.S. Circuit Court of Appeals observed that the purpose of Rule 26 would be completely undermined if parties were allowed to cure deficient reports with later deposition testimony. There, however, the plaintiff had only identified the expert but failed to provide a complete and detailed report of the expert's opinions, conclusions and the basis and reasons for them. In Hoskins, however, the ordered deposition of Dr. K was not meant to avoid ambush at trial. Rather, deposing Dr. K would allow defendant to “fully explore whether or not [Dr. K] held the opinions set forth in her disclosures.” Quoting from a federal decision, the district court noted that “[e]xperts participate in a case because, ultimately, the trier of fact will be assisted by their opinions ' . They do not participate as the alter ego of the attorney who will be trying the case ' “

In ordering Dr. K's deposition, the district court observed: “Should it later prove at deposition that the collaborative process described herein did not result in the report's containing the opinions of [Dr. K], but that of plaintiff's counsel, then Defendants shall be entitled to refile their Motion to Bar.” The court concluded that the “spirit of Rule 26″ was not violated; that, to the extent counsel's drafting of the report failed to comport with the expert reporting requirements, the failure was “harmless”; and, thus, sanctions would not be imposed. But, the denial of the defendant's motion to bar Dr. K's testimony was declared to be “without prejudice.”

A Related Issue

An interesting related issue may be presented from the language of Rule 26(a)(2)(B). The rule describes what the expert's report “shall contain.” One item requiring a “complete statement” is “the data or other information considered by the witness in forming the opinions.” One might well ask: When the attorney ghostwrites a draft report or crafts substantial portions of the expert's report, which the expert can later add to, modify or correct, is not the attorney's draft itself “data or other information considered by the witness in forming the opinions”? And, if so, must the attorney's draft or the attorney-created portions of it be disclosed in accordance with Rule 26? The ramifications could be considerable.

Conclusion

Clearly, mere assistance by counsel to the expert in drafting the disclosure report is permissible. Indeed, the Advisory Committee Notes to Rule 26 (1993 amendments) state: “Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports ' .” This is especially true when inexperienced experts are involved. They need guidance on how to meet the requirements of the disclosure rule and the rudiments of a reliable expert opinion and report. But, as the Sixth Circuit said in Kalymon, 541 F.3d at 638, a party's attorney “can reduce an expert's oral opinion to writing so long as the report reflects the actual views of the expert.” Mere agreement of the expert with a report drafted by someone else and signing one's name at the bottom is not the “preparation” contemplated in Rule 26. As stated by the district court in Manning, 1999 U.S. Dist. LEXIS 7966 at 8-9 (N.D. Ill., May 18, 1999), the assistance of counsel “is not synonymous with ghost-writing.”

Michael Hoenig, a member of this newsletter's Board of Editors, is a member of Herzfeld & Rubin. This article originally appeared in the New York Law Journal, an ALM affiliate of this newsletter.

How much attorney involvement in the drafting of experts' reports is permissible? Must the entire work product be that of the expert? Or, at the other extreme, would it be acceptable for an attorney to draft the entire expert's report with the expert “adopting” it? And, if at least some lawyer input is tolerable, then what is the boundary line between permission and perdition?

These questions are perhaps better targeted at practice in federal courts where Federal Rule of Civil Procedure 26(a)(2)(B) calls for disclosure of experts retained or specially employed to provide expert testimony and which “must be accompanied by a written report prepared and signed by the witness.” The words “prepared and signed by the witness” arguably could signal that an expert's report which was primarily ghost-written by a litigant's attorney is taboo. Were the report to be so tainted, the disclosure required by Rule 26(a)(2) might fail and the expert could be barred. Or so the argument could go.

State Courts

In New York state courts, for example, expert disclosure proceeds differently so that the questions posed at the outset arguably may not raise front-burner issues. CPLR ' 3101(d)(1) requires “each party” to identify each expert expected to be called as a witness and “shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications ' and a summary of the grounds for each expert's opinion.” Unlike the expert's report in federal practice, which calls for the expert's preparation and signature, the CPLR calls for a mere statement by the party. Thus, many attorneys forego sending opposing counsel a formal letter or report signed by the expert. Since what is disclosed is a statement by the party, it seems normal for the attorney to have significant input in the draftsmanship.

Despite the absence of expert-signature formalities in state disclosure practice, the question of attorney ghostwriting of experts' opinions is not totally eliminated, however. Explicit in the obligation to disclose experts' opinions is the need for the opinion actually to be that of the expert. For example, CPLR 3101(d)(1)(i) refers to producing a summary of the grounds “for each expert's opinion.” The quoted language clearly contemplates that it be the expert's opinion.

Further, even without such explicit reference to the expert's opinion, one would implicitly expect from the context of the provision that it must be the expert's opinion, not the lawyer's, that is to be disclosed.

'Adopted' Opinions

If the opinions actually were ghost-written by the lawyer, arguably, they might not truly be the expert's opinion. If an opinion is articulated by the lawyer and “adopted” by the expert as his or her own, some sticky questions might ensue, depending on the circumstances. For example, under state practice, an expert may rely upon professionally reliable hearsay in forming his or her opinion. But an attorney-drafted opinion or conclusion regarding a scientific matter in which the attorney has no expertise would hardly amount to professionally reliable hearsay. Thus, technically, were an expert to rely on the attorney's formulation for expressing an opinion, that methodology may be inadequate. The expert's mere “adoption” of the attorney's opinion as his or her own without some independent exercise of professional judgment or expertise or some personal professionally based intellectual grappling with the problem, would simply camouflage the lawyer as the “expert” and render the expert as a mere “conduit” for the lawyer's wishful conclusions. New York decisions have held that an expert's opinion that amounts only to “conduit hearsay” is highly problematic.

Nevertheless, it is possible that some experts will simply adopt the lawyer's draftsmanship of an opinion and its underlying reasoning. The litigation field is, in many respects, an industry in which experts must perform well and satisfy retaining attorneys. To do this, an expert must deliver reports and conclusions that keep the case alive, hold up well during depositions, and testify effectively at trial. As in any service profession, the expert aims to please his or her client and seeks repeat business and enthusiastic referrals.

'Supervening Domination'

This motivational chemistry could yield rather hasty approvals of lawyer-crafted opinions by some experts. One federal court, speaking about lawyer-inserted changes to an expert's draft report, emphasized that lawyers do not “have license to change the opinions and reports of expert witnesses. Any changes in the preparation of a report must be what the expert himself has freely authorized and adopted as his own and not merely for appeasement or because of intimidation or some undue influence by the party or counsel who retained him.” Marek v. Moore , 171 F.R.D. 298, 302 (D. Kan. 1997) (finding nothing to suggest “supervening domination” by the attorney over expert). Thus, the potential for the lawyer's “supervening domination” exists.

Still, these ruminations may seem theoretical to some since few experts are likely to admit that all they did was “adopt” and parrot the attorney's opinion. Minimally, an expert incorporating a lawyer's formulation of an opinion will likely assert that the conclusion was his or her own after due consideration of the facts, grounds and bases. So, the mechanism of CPLR 3101(d) disclosure may not pose the same tensions that attorney ghost-writing does under Federal Civil Procedure Rule 26(a)(2).

Nevertheless, the questions posed above arguably might apply frontally to ghost-written expert affidavits offered in support of or opposition to motions for summary judgment. State practice regarding such expert submissions would seem to be implicated, since the expert would be signing the affidavit with the force and formality of an oath and representing that the statements and conclusions are his or her own. Would an entirely ghost-written affidavit offering opinions formulated by the attorney truly pass muster? There may be some room for inquiry as the ensuing discussion suggests.

Federal Case Law

Case law on the federal side of the issue is not plentiful, but it has evolved into a respectable body of precedent that offers some guidelines. Spearheading our discussion here is Hoskins v. Gunn Trucking, 2009 U.S. Dist. LEXIS 83630 (N.D. Ind. Sept. 14, 2009). The case involved a plaintiff's claim for personal injuries in an automobile accident.

One of the issues was causation and permanency of the injuries alleged, since the plaintiff also had been injured in two prior accidents. The plaintiff's medical expert was Dr. K, but the physician had no prior experience in testifying as an expert. In preparing an amended Rule 26 disclosure, the plaintiff's counsel drafted a report, provided it to Dr. K, and wrote: “Thank you for agreeing to provide a revised report ' . In hopes of saving you time, we drafted the attached report for you to consider for formatting purposes. Please make as many changes, corrections or additions to the report that you see appropriate for accuracy and completeness ' Let me know once you've completed your report ' .”

Lawyer's Input

The plaintiff's counsel admitted to drafting the report, but explained that the opinions originated with Dr. K during an in-person conference before any work on the report began. Even though the lawyer did “pen” the report, he asserted that it reflected Dr. K's analysis and that Dr. K thereafter “reviewed, corrected and added” to the report before signing it. A line-by-line comparison revealed that the report drafted by counsel was substantially similar to Dr. K's signed report.

A number of the differences were merely stylistic and grammatical ' inserting commas and replacing common language with medical terminology ' but did not alter the substance of the report. However, the final report did include a substantive addition regarding a surgery the plaintiff underwent at an earlier time and her recovery, a medical situation at issue in the lawsuit. The substance of Dr. K's opinions and conclusions, as well as their underlying basis and reasons “remain essentially the same in the final version of the report as in the first.”

The district court framed the issue: Did Dr. K's expert report, drafted by counsel, comply with the disclosure requirements of Federal Rule 26? Since the written report must be “prepared and signed by the witness,” the defendant contended that Dr. K's report was noncompliant having, in effect, been ghost-written by plaintiff's counsel. The plaintiff countered that the report reflected Dr. K's opinions and analysis. The plaintiff also asserted that any error was harmless because the plaintiff did not object to defendant's deposing Dr. K, even though discovery was closed.

Reviewing precedents, the court noted some guidelines. Compliance of the report with Rule 26 “is not based on who actually penned an expert report but, rather, whose opinions and analysis the report contains.” While attorney involvement in the preparation of an expert report is permissible, the expert “must substantially participate in the preparation of the report.” Citing Manning v. Crockett, 1999 U.S. Dist. LEXIS 7966, 1999 WL 342715 (N.D. Ill., May 18, 1999), the court further observed 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, conflicts with Rule 26(a)(2)(B)'s requirement that the expert prepare the report.”

“Preparation” implies involvement other than “perusing a report drafted by someone else and signing one's name at the bottom to signify agreement.” In other words, the assistance of counsel contemplated by Rule 26(a)(2)(B) “is not synonymous with ghost-writing.” Thus, in Bekaert Corp. v. City of Dyersburg , 256 F.R.D. 573, 579 (W.D. Tenn. 2009), the expert's testimony was excluded where the report was wholly prepared by counsel, the expert could not actually identify any portion of the testimony that was his, and the expert's participation amounted to signing the document after reviewing it.

In In re Jackson Nat'l Life Ins. Co. Premium Litigation, 2000 U.S. Dist. LEXIS 1318, 2000 WL 33654070 (W.D. Mich. Feb. 8, 2000), the court found Rule 26 was violated where substantial similarities were found in reports provided by different experts in unrelated cases, yet drafted by the same counsel, and it was clear that the language of the report and formulation of the opinions was provided to the experts by counsel. In the Hoskins case, however, Dr. K had never before testified or been deposed. She needed assistance to meet Rule 26's requirements and plaintiff's counsel “was entitled to, if not obligated to, provide that assistance.”

Dr. K seems to have reviewed the attorney's draft report carefully, for, as mentioned above, she made grammatical corrections, as well as some substantive changes. The final report was not “identical” to counsel's work. Citing a 2008 decision by the U.S. Court of Appeals for the Sixth Circuit in United States v. Kalymon , 541 F.3d 624, 637-38 (6th Cir. 2008), the district court observed that “a party's attorney can reduce an expert's oral opinion to writing so long as the report reflects the actual views of the expert.” Thus, Dr. K's in-person conference with plaintiff's counsel, in which she shared her opinions to be reflected in the report written by the attorney, combined with her review and revision of the report, complied with the type of “preparation” required in Rule 26(a)(2)(B).

Deposition Ordered

The court next regarded the question whether, even if the report were noncompliant, the failure was harmless: 1) Here there was no prejudice or surprise to defendant. The identity of Dr. K was timely disclosed, and the report was substantively adequate, except for counsel's drafting. The report fulfilled its purpose of informing defendant of the substance of Dr. K's expected testimony and the reasons for it. There was no evidence of bad faith on the part of the attorney, especially in light of Dr. K's inexperience as an expert testifier; 2) The trial, yet to be scheduled, would not be disrupted; and 3) Further, the party had the ability to “cure the prejudice” and thus offered Dr. K for deposition. The court accepted this alternative suggesting that it would “ensure the goal of Rule 26 is achieved ' .” Accordingly, defendant would be allowed to depose Dr. K “regarding the report's contents and creation.”

The notion that merely allowing the expert to be deposed can cure violations of Rule 26 disclosure is not without potential criticism. Thus, in Ciomber v. Coop. Plus Inc. , 527 F.3d 635, 642 (7th Cir. 2008), the Seventh U.S. Circuit Court of Appeals observed that the purpose of Rule 26 would be completely undermined if parties were allowed to cure deficient reports with later deposition testimony. There, however, the plaintiff had only identified the expert but failed to provide a complete and detailed report of the expert's opinions, conclusions and the basis and reasons for them. In Hoskins, however, the ordered deposition of Dr. K was not meant to avoid ambush at trial. Rather, deposing Dr. K would allow defendant to “fully explore whether or not [Dr. K] held the opinions set forth in her disclosures.” Quoting from a federal decision, the district court noted that “[e]xperts participate in a case because, ultimately, the trier of fact will be assisted by their opinions ' . They do not participate as the alter ego of the attorney who will be trying the case ' “

In ordering Dr. K's deposition, the district court observed: “Should it later prove at deposition that the collaborative process described herein did not result in the report's containing the opinions of [Dr. K], but that of plaintiff's counsel, then Defendants shall be entitled to refile their Motion to Bar.” The court concluded that the “spirit of Rule 26″ was not violated; that, to the extent counsel's drafting of the report failed to comport with the expert reporting requirements, the failure was “harmless”; and, thus, sanctions would not be imposed. But, the denial of the defendant's motion to bar Dr. K's testimony was declared to be “without prejudice.”

A Related Issue

An interesting related issue may be presented from the language of Rule 26(a)(2)(B). The rule describes what the expert's report “shall contain.” One item requiring a “complete statement” is “the data or other information considered by the witness in forming the opinions.” One might well ask: When the attorney ghostwrites a draft report or crafts substantial portions of the expert's report, which the expert can later add to, modify or correct, is not the attorney's draft itself “data or other information considered by the witness in forming the opinions”? And, if so, must the attorney's draft or the attorney-created portions of it be disclosed in accordance with Rule 26? The ramifications could be considerable.

Conclusion

Clearly, mere assistance by counsel to the expert in drafting the disclosure report is permissible. Indeed, the Advisory Committee Notes to Rule 26 (1993 amendments) state: “Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports ' .” This is especially true when inexperienced experts are involved. They need guidance on how to meet the requirements of the disclosure rule and the rudiments of a reliable expert opinion and report. But, as the Sixth Circuit said in Kalymon, 541 F.3d at 638, a party's attorney “can reduce an expert's oral opinion to writing so long as the report reflects the actual views of the expert.” Mere agreement of the expert with a report drafted by someone else and signing one's name at the bottom is not the “preparation” contemplated in Rule 26. As stated by the district court in Manning, 1999 U.S. Dist. LEXIS 7966 at 8-9 (N.D. Ill., May 18, 1999), the assistance of counsel “is not synonymous with ghost-writing.”

Michael Hoenig, a member of this newsletter's Board of Editors, is a member of Herzfeld & Rubin. This article originally appeared in the New York Law Journal, an ALM affiliate of this newsletter.