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?

Toxic Telephone Poles?

In a first-of-its-kind litigation, the Ecological Rights Foundation ("ERF") has alleged in a Complaint brought in federal district court in San Francisco that Pacific Gas & Electric Company (PG&E)  is  in violation of the Clean Water Act ("CWA") and the Resource Conservation and Recovery Act ("RCRA").  ERF alleges that the treatment of PG&E’s utility poles treated with pentachlorophenol ("penta"), a wood preservative, has resulted in contamination of groundwater and surface water throughout four counties in Northern California — Alameda, Contra Costa, Marin, and San Francisco, including San Francisco Bay.  The suit implicates all of the estimated 300,000 utility poles that support Northern California’s electrical power grid. Does ERF expect a court will order that all of those utility poles be taken down and replaced with poles comprised of an as-yet-to-be-invented-space-age-material that does not require chemical treatment, never deteriorates, causes no environmental harm and does not cause hazardous waste to be emitted during manufacture? 

In an article posted on its website, Foley & Lardner, which has been tapped by PG&E, cautions that  this lawsuit potentially has far-reaching implications. The Milwaukee-based law firm notes that millions of utility poles throughout the country are treated with penta or other preservatives, which are necessary to keep the utility poles from deteriorating and to keep electricity and telephone service flowing to homes and businesses.  Significantly, they observe that the environmental impact of the penta-treated poles was examined in great detail by the USEPA when the use of penta-treated wood poles as utility poles was approved.  By approving the use of penta, USEPA found that penta did not cause the significant environmental harm now alleged by ERF. If ERF is successful in San Francisco, where might this type of litigation lead? 

Apart from the serious policy considerations at issue here, ERF’s lawsuit will have to overcome significant legal hurdles, including for starters: (1) that under CWA, ERF must demonstrate that each individual pole is a "point source". It may be difficult to argue with a straight face in federal court that PG&E should have obtained a permit for each discharge from every pole–all separate violations of the statute: and (2) that under RCRA, ERF must demonstrate that PG&E is a generator of solid waste that presents "an imminent and substantial endangerment to the environment. The defendants are not the applicators of the material.  The sub-text of the litigation appears to revolve around  ERF’s unhappiness over USEPA’s past decision making concerning the use of Penta on utility poles. If so, ERF take it up with USEPA and leave our fragile power grid alone! 

Rule 26 Modifications To Limit Inquiries To Experts

To  make expert depositions more efficient, the U.S. Judicial Conference Advisory Committee on Civil Rules has proposed that lawyers no longer be permitted to interrogate opposing experts about their communications with the lawyers who retained them.  Under the proposed rule changes, draft reports will be subject to work product exemption and will not be discoverable.  As Jeffrey Greenbaum, a partner at Sills Cummis & Gross, P.C. in Newark and an officer of the ABA Section of Litigation, which recommended that the rule be changed, advised Law360, "There is interplay between attorneys and experts in terms of strategy that takes place."  Therefore, prohibiting discovery about "who said what to whom" will allow depositions to focus on the expert’s analysis of the case.  At the end of the day, jurors care about issues of bias, but could not care less about who said what to whom.  Some trial lawyers are concerned that the new rule will give license to "hired guns" who do the bidding of the lawyer who retained them.  However, the view shared by most is that interrogating an expert about his conversations with counsel and prior report drafts is a big waste of time.  Nevertheless, some lawyers value the opportunity to fully inquire of an expert witness his or her connection to counsel and are concerned the new rule will chip away at that inquiry.