California appellate court bucks national trend, allows plaintiff experts to opine that “every asbestos exposure is a substantial factor”

Courts from around the country have rejected efforts by plaintiff experts to testify that every asbestos exposure is a substantial factor in causing disease. On March 3, 2016, California’s second appellate district went the other way, and held in Davis v. Honeywell International, Inc. that the controversial “every exposure counts” theory is admissible under governing expert witness law.   Thus, although trial courts are supposed to play a “gatekeeper” role in keeping out unreliable expert evidence (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747), Davis breaks the gate wide open in allowing a jury, not the trial court in its “gatekeeper” role, to decide whether to accept the theory.

Davis was aGATEPICTURE wrongful death case.  Sam Davis  worked as an auto mechanic and home remodeler from approximately 1963 to 1979.  He performed “one or two” brake jobs per day, and always used Bendix brake linings (for which defendant Honeywell was responsible). These linings contained 50 percent chrysotile asbestos by weight.  He was also allegedly exposed to asbestos as a result of his home remodel work.

Prior to trial, Honeywell filed a motion in limine to preclude plaintiff from presenting expert opinion testimony that every exposure to asbestos above background contributed to decedent’s disease. The motion was denied, and plaintiff’s pathologist (James A. Strauchen, M.D.) and pulmonologist (William Rom, M.D.) were permitted to testify and advance the theory. Ultimately, the jury found for plaintiffs, and Honeywell appealed.

Honeywell’s primary basis for appeal was that the “every exposure counts” testimony of Dr. Strauchen should have been excluded. Honeywell advanced four arguments:  (1) the testimony was speculative and illogical; (2) the regulatory standards Strauchen relied upon cannot establish causation; (3) no appropriate scientific literature supports the theory; and (4) the theory is contrary to California causation law espoused in Rutherford v. Owens Illinois (1997) 16 Cal.4th 953, which held that not every exposure to asbestos is a “substantial factor” in causing disease.

Davis rejected each of Honeywell’s arguments. “Having reviewed much of the commentary and scientific literature cited in support of and against the ‘every exposure’ theory, we conclude that the theory is the subject of legitimate scientific debate.   Because in ruling on the admissibility of expert testimony the trial court ‘does not resolve scientific controversies (Sargon), it is for the jury to resolve the conflict between the every exposure theory and any competing expert opinions.”  The court focused largely on the mere existence of evidence that supported the “every exposure counts” theory, and declined to weigh the evidence or any competing inferences.   “While Honeywell is generally correct that in many (or even most) instances epidemiological studies provide the best evidence of causation, its implied argument that it is improper for an expert to rely upon any other tools to determine causation, such as case reports, is not universally accepted.”  As to Honeywell’s argument that “every exposure” contravenes Rutherford, Davis  interpreted Rutherford as not requiring a “dose level estimation,” instead issuing a sweeping statement interpreting Rutherford as supporting the conclusion that even a very small “dose” could increase the risk of asbestos-related cancer.  Davis distinguished the many cases from other jurisdictions rejecting this argument, including Betz v. Pneumo Abex, LLC (2012) 615 Pa. 504, Bostic v. Georgia-Pacific Corp. (Tex. 2014) 439 S.W.3d 332 and Moeller v. Garlock Sealing Technologies, LLC (6th Cir. 2011) 660 F.3d 950. “[W]e simply disagree” that the “every exposure” theory could not be “reconciled with the fact that mesothelioma and other asbestos-related diseases are dose-dependent.”

The Davis court did state, however, that “[w]e caution that our discussion of the materials Dr. Strauchen relied upon should not be seen as approval of either side in that scientific dispute.  Rather, we rely upon the rule of Sargon that although trial courts ‘have a substantial ‘gatekeeping’ responsibility,’ in evaluating proposed expert opinion . . . the gate tended is not a partisan checkpoint . . . If the opinion is based on materials on which the expert may reasonably rely in forming the opinion, and flows in a reasoned chain of logic from those materials rather than from speculation or conjecture, the opinion may pass, even though the trial court or other experts disagree with its conclusion or the methods and materials used to reach it.  (emphasis added)

Further, although much of the discussion relates to the “any exposure” theory, Davis pointed out that the case did not hinge on that theory.  “In this case, Dr. Strauchen was presented with a hypothetical based on the facts surrounding Davis’ exposure to dust from his work on Bendix brake linings, and testified as to estimates of the amount of asbestos fibers contained in visible dust. Therefore, his conclusion that Davis’ exposure to Bendix brake linings was a substantial factor in contributing to the risk of mesothelioma was not based simply on “any exposure” to asbestos, but instead related to an estimate of actual exposure.”

The decision is not yet final. It is still subject to a petition for rehearing, which could result in a change in the opinion, and to either or both a request for depublication and a petition for review to the California Supreme Court, either of which if granted would make this decision uncitable in California courts, though not necessarily elsewhere.

Plaintiffs’ Experts’ “Cherry-Picking” of Scientific Studies Not Permitted

On February 20, 2015, New Jersey Superior Court Judge Nelson C. Johnson issued a decision in the New Jersey Accutane Multicounty Litigation that, if not reversed on appeal, will likely result in the dismissal of several thousand cases pending against Hoffmann-LaRoche. The court granted the pharmaceutical company’s motion to bar plaintiffs’ experts’ testimony regarding Accutane, and its alleged propensity to cause Irritable Bowl Disease (“IBD”), including Crohn’s Disease (“CD”). The court made its determination after conducting an exhaustive analysis of the scientific literature and the testimony of both sides’ experts. The decision is noteworthy for the court’s painstaking assessment of the body of scientific literature on medical causation. Defendant’s counsel clearly did a superb job in educating Judge Johnson on the science.

ETT BLOG_cherriesAccutane was approved by the Food and Drug Administration in 1982 to treat a severe form of acne, which can cause disfigurement on the face and back of those affected. Crohn’s Disease is a serious chronic inflammation of the gastrointestinal tract that can cause gastrointestinal bleeding, among other symptoms, and carries an increased risk of cancer. Most scientific literature has concluded that the cause of CD and IBD remains unknown.

To establish a causal connection between Accutane and IBD and CD, plaintiffs presented the court with two expert witnesses, Arthur A. Kornbluth, M.D., and David Madigan, Ph. D, both of whom are accomplished leaders in their professions, with highly impressive credentials. Dr. Kornbluth is a Clinical Professor of Medicine at the Icahn School of Medicine at Mount Sinai University. He specializes in gastroenterology and has published over one hundred peer-reviewed articles, abstracts and textbook chapters. Dr. Madigan is a Professor of Statistics at Columbia University and Executive Vice President of Arts & Sciences and Dean of Faculty. He has published over one hundred-fifty technical papers and served as an investigator for monitoring the safety of FDA-regulated medical products.

To rebut the plaintiffs’ experts, defendants relied upon the testimony of two experts, Steven N. Goodman, M.D., M.H.S. Ph. D, and Maria Oliva-Hempker, M.D, who are also exceptionally learned and accomplished professionals. Dr. Goodman practices in the field of epidemiology. He is a Professor and Associate Dean for Clinical Research at Stanford University and has received numerous awards in his area of expertise. Dr. Oliva-Hempker is a Professor of IBD and Chief of Division of Pediatric Gastroenterology & Nutrition at the Johns Hopkins University School of Medicine. She has been published in over seventy treatises and medical texts and maintains a substantial presence in educating the public on IBD. Thus, from the standpoint of professional credentials, the two sides were well-represented and seemingly evenly matched.

Of particular significance to the court in making its analysis was The Reference Manual on Scientific Evidence (3d Ed.), issued by the Federal Judicial CenterThe state court looked to the Reference Manual for guidance on the reasonableness standards of the scientific community and its evaluation of the epidemiological studies. The use of federal guidance by a New Jersey state court is noteworthy.

In determining that plaintiffs’ experts’ was unreliable Judge Johnson criticized plaintiffs’ experts for “cherry-picking the evidence.”  “The examination of the ‘lines of evidence’ by Plaintiffs’ experts was highly selective, looking no further than they wanted to — cherry-picking the evidence — in order to find support for their conclusion-driven testimony in support of a hypothesis made of disparate pieces, all at the bottom of the medical evidence history.”

The court also caught Dr. Kornbluth taking a position in a published article that was the opposite of what he argued in court. During the pre-publication peer review process, Dr. Kornbluth refused to associate Isotretinoin as a cause of IBD, although in court he had no reservations arguing that Isotretinoin caused IBD. In order to define the prodromal period of CD, plaintiffs’ relied on a single study with only 76 subjects and ignored studies with much larger patient groups. The court found that, “the unsound nature of plaintiffs’ methodology in relying upon such a study becomes readily apparent when compared with the population studies, involving hundreds of thousands of subjects presented to the court. Plaintiffs’ rationalization for ignoring the other studies is assertedly their failure to account for a lengthy prodrome of CD. Yet here again, plaintiffs’ experts engage in their finely-tuned selectivity of the evidence by disregarding eight of nine prodromal studies.” The court found further that plaintiffs’ experts demonstrated the talent of “the self-validating expert, who uses scientific terminology to present unsubstantiated personal beliefs.”

In one instance, plaintiffs’ experts interpreted the results of a study they relied on contrary to the authors’ own stated conclusions. The study’s authors concluded that the risk for IBD following Isotretinoin exposure had no statistical significance, but the experts argued to the contrary. The court commented, “It is one thing to stand alone in the world of science, advancing a hypothesis that others do not accept. It is quite another thing to advance a hypothesis that can only be supported by disregarding valid scientific research.” Even more ineffective was the plaintiffs’ reliance on a second study with a particularly small patient population to define the prodromal period of CD. The court asked rhetorically, “with regard to these two studies, one wonders whether Dr. Kornbluth or Dr. Medigan would cite them as meaningful any place but a courtroom.”  The court found it unlikely that Dr. Kornbluth or Dr. Medigan, who took such pride in their professional accomplishments, would rely on these studies as defining treatises. Excoriating plaintiffs’ counsel and their experts, the court stated that, “the reliance upon these two studies is fatal and reveals the lengths to which legal counsel and their experts are willing to contort the facts and torture the logic associated with plaintiffs’ hypothesis.”

Several observations that may be of use in other cases.

Adverse Event Reports. It is noteworthy that the court did not credit plaintiffs’ reliance on Adverse Event Reports.  Plaintiffs frequently made reference to these anecdotal reports filed with the FDA. But the FDA itself notes that there is no certainty that the reported circumstance are actually attributable to the drug the patient was taking. Causal assessments are difficult to make because these reports are, according to a scholarly text cited by the court, “usually based on suspicion, and may be preliminary, ambiguous, doubtful or wrong.” Moreover, there is concern of potential abuse of these reports, especially by attorneys. “The legal profession is a bulwark of our society, yet the courts should never underestimate the resourcefulness of some attorneys.” Out of 2,214 cases of IBD resulting from Isotretinoin, attorneys reported 87.8% cases, as compared to 6% by physicians and 5.1% by consumers.

Animal Studies. The court also criticized plaintiffs’ reliance on animal studies. Again, referencing the Reference Manual, the court concluded that animal studies have two major disadvantages. The first is the obvious variation in responses among different species of animals. “The second difficulty with inferring human causation from animal studies is that the high dose customarily used in animal studies requires consideration of the dose-response relationship and whether a threshold no-effect does exist.” The problem with the dog study in this case was that even though dogs are mammals, the dogs in the experiment were euthanized after testing, so there was no evidence of whether the dogs’ intestines suffered any permanent harm. Equally important, dogs do not suffer from IBD.

The Reference Manual on Scientific Evidence (3d. Ed.) should never be overlooked by the practitioner preparing a Daubert motion. As evidenced by this case, the Reference Manual has persuasive power in both state and federal courts.

It is defense counsel’s job to teach the science to the presiding judge. Considering the case load of most judges, this is not an easy task. In this case, Hoffmann-LaRoche was fortunate to have a judge willing to make this herculean effort.

Image courtesy of Flickr by Audrey

Environmental Diminution Of Property Value And The Creative Plaintiff Valuation Expert

When a homeowner brings a multi-count toxic tort case alleging that a corporate defendant’s discharge of toxic substances from its facility contaminated his property, the diminution of property value claim is often the only element of damages subject to objective determination. Or is it?

In case after case, the testimony of plaintiff property valuation experts is being rejected for failing to comply with Federal Rule of Evidence 702.  There is often little or no dispute that homeowners living adjacent to an area involved in ongoing remediation may have difficulty selling their homes at full market value. And yet, despite the apparent stigma, plaintiff experts in these matters often stumble on their way to the courthouse.

One recent such case is Michael Leese, et al. v. Lockheed Martin Corp., Civ. No. 11-5091, decided by the Hon. Jerome B. Simandle, Chief U.S. District Judge for the federal district court in New Jersey on March 18, 2014. In that case, Judge Simandle granted summary judgment to Lockheed Martin after concluding that the expert report and deposition  testimony of plaintiffs’ valuation expert, Jerome McHale, should be excluded as unreliable.

The property valuation reports at issue concerned the Leese property at 5 Victoria Court and the Linkler property at 7 Victoria Court, in Moorestown, New Jersey. Both properties sit across the street from a Lockheed Martin’s research, development and manufacturing facility. When plaintiffs purchased their respective properties, they admittedly were aware that groundwater underneath their properties was contaminated with TCE, a volatile organic compound.

After several years, plaintiffs brought suit against Lockheed Martin alleging personal injury on behalf of the Leese children and diminution of property value. In late 2013, the court dismissed the personal injury claims due to lack of proof of causation, but permitted plaintiffs to furnish a new expert valuation report.

McHale’s valuation report concluded that each property was worth $295,000 “as is” and $600,000, “if clean.” Therefore, he calculated the loss of value for each property as $305,000. Yet, when Judge Simandle began to dig into McHale’s methodology and rationale, he discovered a jumble of unexplained arithmetic, unreliable methodology, and internal inconsistencies.

As is often the case, a valuation expert does not have difficulty establishing the “if clean” valuation, the real estate investors in Houston will gladly do a valuation every time there is an opportunity to buy a property. In this case, McHale used a “sales comparison” approach by averaging the sale prices of four comparable properties in the plaintiffs’ residential development to obtain the “if clean” valuation. It was when McHale attempted to analyze the “as is” value of the properties that he ran into serious difficulty.

McHale used three different techniques to estimate the “as is” value and took the averages of the three valuations to arrive at a final “as is” figure. The court evaluated each of these three techniques in turn.

The first technique, called “cost to cure,” subtracted from the “if clean” valuation the cost of environmental remediation. McHale obtained an estimate of remediation costs from a non-testifying expert. The problem was that NJDEP did not require or recommend that any of this non-testifying expert’s proposed remedial measures be implemented on plaintiffs’ properties.

The court analyzed the “cost to cure” approach this way:

“The most significant problem with McHale’s cost-to-cure analysis is that he may not reasonably rely on Rogers’ unsupported, subjective analysis of what remedial measures are “required” on the property. Rogers himself states that his estimate describes “measures [that] are prophylactic as opposed to curative in nature.” …In other words, Rogers, by his admission, does not intend his letter to address the costs to cure for a contamination on plaintiff’s property. Rather, Rogers expressed his opinions about what prophylactic measures are required without explaining the basis for such an opinion.”

Judge Simandle found that the “cost to cure” technique suffered from a Daubert “fitness” problem as well. Because plaintiffs admitted that they knew the groundwater under their properties was contaminated with TCE when they bought their homes, remediating the property to “if clean” levels would improve the property beyond what plaintiffs purchased and give them a windfall. According to the court, the proper valuation analysis should take into account what plaintiffs knew of the condition of the property at the time of purchase.

The second technique applied a “paired sales” analysis. A “paired sales” analysis looks to sales of other stigmatized properties, estimates “if clean” valuations for those properties, and calculates a “percentage discount” for the environmental stigma for each property. The average percentage discount is then applied to the “if clean” valuations of plaintiffs’ properties.

Two of the four comparative properties used by McHale were inappropriate because NJDEP required remediation on them, by contrast, but did not require remediation on plaintiffs’ properties. Moreover, the cost of remediation on those properties was modest as compared to the hundreds of thousands of dollars proposed for plaintiffs’ properties.

In evaluating the “paired sales” technique, the court found that McHale’s report had irreparable flaws. First, McHale could not articulate a reliable basis for weighting the comparator percentages, and he did not consult any authority to arrive at his average. More significantly, the court found that McHale had no reliable basis for adding 10% to the weighted average discount. In his deposition, when pressed, McHale admitted that he came up with an extra 10% derived from a “market based opinion from me” after gathering opinions from unspecified “other people in the market.”

The third technique employed by plaintiffs’ expert was “realtor and broker surveys.” McHale surveyed eleven area realtors to come up with an appropriate discount for residential property faced with a stigma. Although the plaintiffs’ homes did not have any operational remediation system on their premises, McHale asked the realtors to assume that the homes had a subsurface depressurized remediation system in the basement.

Based upon the realtors’ survey, he concluded that 20% would be an appropriate discount off the listing price. He then added another 5% because properties without stigma had sold for below 5% market over the past two years due to poor real estate conditions.  He then added another 15% because of additional marketing time and effort, and the difficulty of a buyer finding financing. All of these calculations resulted in the final discount of 40%.

In examining the “interviews/surveys” approach, the court questioned why McHale doubled the discount from 20% to 40% without explaining why the realtors would not have taken into consideration the other factors McHale discussed when giving their responses. Presumably, the discounted selling price already took into consideration any difficulty in obtaining financing and any increased marketing costs. Therefore, these considerations should not be counted twice in coming up with a discount.

In addition, it made no sense why the realtors were asked to assume that they should expect to sell a house with a subsurface remediation system when the plaintiffs’ own homes did not have such a system. In summary, the court concluded:

“Although some methodological flaws go to weight, here the methodology is unreliable at each step: fact gathering, percentage averaging, percentage doubling. The entire formulation of the survey seems to invite unreliability…”

Leese is instructive for the toxic tort defense practitioner because it provides a primer on how to pick apart the opinions of a plaintiff property valuation expert in deposition and, later, in a Daubert motion.  Opinions that at first glance might seem reasonable at first glance fail to hold up and careful analysis.  In Leese, the plaintiff valuation expert utilized three separate techniques for determining plaintiffs’ “as is” value and failed to pass Daubert scrutiny in every instance.

Court Holds Spicy Meatball, Not Pesticide, Caused Plaintiff’s Illness

In an Opinion and Order, dated May 31, 2013, the Hon. Sandra J. Feuerstein granted summary judgment to a defendant pesticide manufacturer after determining that plaintiff”s expert failed to meet the reliability requirements of Rule 702 and Daubert, in Mallozzi v. EcoSMART Technologies, Inc., E.D.N.Y., no. 11-cv-02884, 5/31/13.

Defending toxic tort claims against pesticide manufacturers is always challenging because pesticides, by their very nature, are designed to cause injury and death to pests. Plaintiff’s counsel is only too willing to permit the jury to infer that a pesticide product that can be harmful to bugs can also be injurious to humans. Therefore, if a defendant pesticide manufacturer can subject plaintiff’s expert to Daubert scrutiny prior to trial, it may be possible to dispose of scientifically suspect cases before they reach trial.

In Mallozzi, plaintiff claimed that he developed severe gastroesophageal reflux disease (“GERD”) and laryngopharyngeal reflux (“LPR”) as a result of an inhalatory exposure to EcoSmart Organic Home Pest Control, which contains 1% peppermint oil.

However, it was not until plaintiff returned from dinner at an Italian restaurant the night of the alleged pesticide exposure that he experienced nausea, a racing heartbeat and burning in his stomach and chest. Plaintiff obtained the expert opinion of Dr. Barry S. Levy, an occupational and environmental health physician and epidemiologist, that his exposure to peppermint oil caused his LPR by relaxing his lower esophageal sphincter.

In its motion for summary judgment, the defendant argued that Dr. Levy’s testimony was unreliable and did not meet the Daubert standard primarily because Dr. Levy was unable to establish the amount of peppermint oil inhaled.

The articles that Dr. Levy relied upon discussed ingestion of peppermint oil rather than inhalation, which was the case here. Moreover, none of the articles relied upon by Dr. Levy addressed whether inhalation of a substance containing 1% peppermint oil, over the course of a matter of minutes, could relax the lower esophageal sphincter or cause LPR.

In part, defendant’s motion was successful because defendant’s counsel laid the groundwork for the motion by obtaining helpful testimony from plaintiff’s expert in deposition. During Dr. Levy’s deposition, defendant’s counsel elicited testimony that none of the scientific articles relied upon by Dr. Levy involved inhalation of peppermint oil.

In addition to establishing a strong record in deposition, defendant’s counsel was also able to raise issues concerning the cause of plaintiff’s illness by obtaining a detailed medical history of plaintiff. The court rejected Dr. Levy’s reliance on the temporal proximity between plaintiff’s exposure to the product and the onset of plaintiff’s symptoms. In particular, the court observed that plaintiff began experiencing reflux hours after having a heavy meal of “spaghetti with seafood.”

Indeed, plaintiff had been hospitalized in 2001 for esophageal reflux after eating a donut and drinking coffee. On another occasion, he had experienced reflux prior to April 2010 when he had apparently overindulged on linguini with clam sauce. This prior medical history no doubt predisposed the court to believing plaintiff’s causation claim was suspect. The court found that Dr. Levy had “failed to justify his conclusion that reflux specifically caused by inhalation of the product caused plaintiff’s LPR and not reflux caused by plaintiff’s persistent GERD, both before and after April 19, 2010.” 

Reference Manual on Scientific Evidence: Third Edition–An Indispensable Tool

With little fanfare, the Federal Judicial Center and the National Research Council of the National Academies issued the Reference Manual on Scientific Evidence: Third Edition, in 2011. Soon after the Supreme Court’s historic 1993 holding in Daubert v. Merrill Dow Pharmaceuticals, Inc., in which federal judges were directed to serve as “gatekeepers,” the Federal Judicial Center published the First Edition of the Reference Manual on Scientific Evidence, which became the leading reference source for federal judges seeking an understanding of difficult issues involving scientific testimony. The Second Edition was published by the Federal Judicial Center in 2000.  Considering advances in science, both in terms of how science is treated in the courtroom and in the laboratory, over the last 12 years, a new edition is certainly welcome. 

For the toxic tort practitioner, the Reference Manual on Scientific Evidence is an indispensable reference work. As with previous editions, the Third Edition is organized according to the important scientific and technological disciplines often encountered by federal (or state) judges. It would be difficult to imagine preparing any toxic tort case for trial (or the filing of a Daubert motion) without reviewing, for example, the manual’s chapters on exposure science, epidemiology, toxicology, neuroscience and/or engineering. 

In particular, two critical issues germane to the interpretation of scientific evidence, namely issues of causation and conflict of interest, are highlighted in the new edition’s Preface. Judges are in a less favorable position than scientists to make causation assessments. Scientists have the luxury of delaying their decision while they or others gather more data. Judges, on the other hand, must rule on causation based upon existing information presented to the court. In the final analysis, a judge does not have the option of suspending judgment until more information is available, but must fulfill his gatekeeper role after considering the best available science. The Third Edition seeks to make that judicial task more manageable.

The Preface also discusses the problem of conflict of interest, which is an issue that cuts across most, if not all, scientific disciplines. What is the relationship between conflict and bias? According to the Preface, even though financial conflicts can be identified, the existence of a conflict, even one involving huge sums of money, does not necessarily mean that a given individual will be biased. Thus, having a financial relationship with a commercial entity produces a conflict of interest, but does not inevitably evoke bias. As the Third Edition points out, it is critical that judge and juries consider financial conflicts of interest when assessing scientific testimony, and the threshold for pursuing the possibility of such bias must be low.

I would appreciate comments from practitioners concerning how, if at all, the issuance of the Third Edition has impacted toxic tort trial practice or might do so in the future.


Expert Reports Ghostwritten By Counsel

Over the years, I have become an enormous fan of Michael Hoenig, a partner at Herzfeld & Rubin, who writes the Products Liability column in The New York Law Journal. More than any other product liability commentator, Mr. Hoenig has served as a muse and inspiration. His columns are thoughtful and well-written. 

Mr. Hoenig’s column titled, “When Attorneys Ghostwrite Experts’ Reports,” published December 14, 2009, is a case in point. Shortly after the column appeared, I prepared a motion for filing in the EDNY to disqualify an adversary’s expert after he confessed in deposition to not preparing his own expert report. In his article,  Mr. Hoenig poses the following questions: 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? 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.” Mr. Hoenig discusses the federal district court case law discussing the circumstances under which an expert’s failure to prepare his own report might lead to his being barred from testifying at trial. In evaluating the individual facts presented to determine Rule 26 compliance, courts will most likely base their decisions not on who actually penned the report but, rather, whose opinions and analysis the report contains. One federal district court has held that “substantial participation” by the expert in the preparation of the report is required. Even if your motion to disqualify the expert altogether does not succeed, if you can demonstrate to the trial court that much of the expert’s report was ghostwritten by your adversary, the court may be more kindly disposed to your Daubert arguments. After all, if the expert cannot be bothered to write his own report, how painstaking can his methodology be?