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Expert Report Rules

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Expert Report Rules, Second Edition, provides a quick and ready practical reference to issues and approaches for experts and the busy trial lawyers who present them. In this conversational and engaging text, David Malone shares his insights and brings clarity to the many issues surrounding the expert report writing process:

•  who has an obligation to file an expert report (including a discussion of "hybrid" witnesses and the expert's assistants)
•  what should be included in the report
•  who writes the report
•  creating and retaining drafts
•  what portions of the preparation activities are discoverable
•  supplementing the initial report
•  Daubert-Kumho Tire issues
•  relationship between the Expert Report and the Expert Deposition
•  how the report will be used at trial

Expert Report Rules is designed to help attorneys and experts deal in common-sense way with the situations that arise as they work their way through the pretrial and trial process.

Authors / Contributors

Table of Contents


Introduction to the 2012 Edition

Chapter One—The Obligation to File

1.1 Who Must File?

1.2 Who is Considered an Expert?

1.3 Do Assistants to the Expert Have to File Reports if the Expert Relied on Their Work?

1.4 Do Regular Employees Designated as Experts Have an Obligation to File a Report?

1.5 Do Experts "By Reason of Experience" Have to File a Report?

1.6 Do Lay Witnesses Testifying under Federal Rule of Evidence 701 Have to File a Report?

1.7 Do Business People Testifying about the "Practice in the Industry" Have to File a Report?

1.8 Does a Treating Physician Have to File a Report?

1.9 Do Rebuttal Experts Have to File Reports?

1.10 When Do the Reports Have to Be Filed or Exchanged?

1.11 What is the Significance of a Party Not Filing a Report?

1.12 Does a Court-Appointed Expert Have to File a Report?

1.13 Do So-Called "Hybrid" Experts Have to File Reports?

Chapter Two—What Are the Contents?

2.1 What Topics Must Be in the Report?

2.2 How Much Detail Must Be Provided about Opinions and Bases?

2.3 Must Final Graphic or Visual Aids Be Included, or Are Drafts Sufficient?

2.4 How Much Detail Must Be Provided about Methodology?

2.5 Must Sources Be Attached or Is Reference Sufficient?

2.6 Must Expert's Contributing Support Staff Be Identified?

2.7 Should Disagreements with Opposing Experts Be Included as Opinions?

2.8 How Are Inadmissible Bases Handled in the Report?

2.9 How Should the Report Disclose Contributions of Consulting Experts?

Chapter Three—Who Writes the Report?

3.1 How Much Help May the Testifying Expert Receive in Writing the Report?

3.2 May Consulting Experts Help Write the Report?

3.3 May the Attorney Help?

3.4 May the Expert's Staff Help?

3.5 What Is Impermissible "Ghostwriting"?

Chapter Four--What Is the Creation Process?

4.1 Who Should Create the First Draft?

4.2 What Comments from the Trial Team Are Appropriate?

4.3 When Should the Expert Begin Writing?

4.4 To Whom May the Expert Show Drafts?

Chapter Five—What Happens to Drafts?

5.1 Must Drafts Be Retained by the Expert or Attorney?

5.2 May the Expert Apply the Retention Policy of Her Own Office?

5.3 Must Notes of Conversations with Counsel about the Report Be Retained?

5.4 Must E-mails about the Report Be Retained?

5.5 Is There a Difference in the Retention Obligation for Unprinted (Electronic) Drafts?

5.6 May Counsel Stipulate that Drafts Need Not Be Retained or Included on a Privilege Log?

Chapter Six—What Portions of the Preparation Activities Are Discoverable?

6.1 Are Drafts of the Report Discoverable, Even if Not Circulated?

6.2 Are Communications between the Expert and Her Staff Discoverable?

6.3 Are Communications between the Expert and the Attorney Discoverable?

6.4 Are Communications between the Testifying Expert and the Consulting Expert Discoverable?

6.5 Are Reports in Other Cases Discoverable?

6.6 Are Engagement Letters Discoverable?

6.7 Are "Cover Letters" Transmitting Material to Be "Considered" Discoverable?

6.8 Are Materials Prompting Supplementation of the Report Discoverable?

Chapter Seven—When Is Supplementation Required?

7.1 What Is the Time Schedule for Supplementation?

7.2 What Changes Are Significant Enough to Require Supplementation?

7.3 What Are the Ramifications of Not Supplementing?

7.4 Do New Opinions Require Supplementation?

7.5 Do New Bases for Previously Disclosed Opinions Require Supplementation?

7.6 Does the Deletion of Previously Stated Opinions from the Expert's Intended Testimony Require Supplementation?

7.7 Does the Intent to Rely on Newly Developed Analogies Require Supplementation?

7.8 Do New and Confirming Discussions with Other Experts Require Supplementation?

7.9 Does the Intent to Offer ''Anticipatory Rebuttal" to the Opposing Expert's Testimony Require Supplementation?

7.10 Can Supplementation Be Used to Cure a Missed Report Deadline?

Chapter Eight—How Is Daubert-Kumho Tire Involved?

8.1 Must the Report Disclose Opinions and Bases on "Methodological Reliability"?

8.2 Could the Report Be Supplemented in Its Daubert-Kumho Tire Discussion after a Daubert Hearing that Rejects the Testimony?

8.3 Is the Absence of Daubert-Kumho Tire Reliability Opinions in a Report Enough to Justify Excluding the Expert?

8.4 If Counsel Is Relying on Material Extrinsic to the Expert's Testimony to Demonstrate Methodological
Reliability, Where Is That to Be Disclosed?

Chapter Nine—What Is the Relationship between the Expert Report and the Expert Deposition?

9.1 How Are the Report and the Deposition Intended to Work Together?

9.2 May the Expert Be Asked at the Deposition about the Report?

9.3 May the Expert Be Asked at the Deposition about Matters within Her Field, But Not Included in the Report?

9.4 May the Expert Be Asked about the Process Used to Create the Report?

9.5 What Is the Significance of the Expert Changing a Portion of the Report at Her Deposition?

9.6 What Is the Significance of Conflicts between the Reports of Different Experts for One Party?

9.7 Should Opposing Counsel Ask Whether the Expert Has Opinions about the Case That Are Not Contained in Her Report?

9.8 How Long after Receipt of the Report Should the Deposition of the Expert Be Scheduled?

9.9 If the Expert Agrees at Deposition to Notify Opposing Counsel of Any Additional Opinions or Bases, Regardless of Whether They Justify Supplementation, Is That Agreement Enforceable?

Chapter Ten—How Is the Report Used at Trial?

10.1 Is the Report Admissible at Trial by the Proponent of the Expert?

10.2 May the Report Be Used to Impeach the Expert?

10.3 Does the Report Constitute a Party Admission?

10.4 Does the Jury Get the Report If It Is Offered by the Side Presenting the Expert?

10.5 If the Opponent Reads Portions of the Report, What Can the Proponent Do?

Appendix AFederal Rule of Civil Procedure 26