Expert witnesses are increasingly being challenged, and in many cases being disqualified under Daubert.

When attorneys suspect retaining counsel has effectively “written” the expert’s report, attorneys are using this to pursue disqualification of the expert.


ADVANCED MOBILE HOSPITAL SYSTEMS, INC., Case No. 2:07-cv-231, United States District Court, D. Vermont the court dealt with a challenge to an engineer, Brummel, who was to testify in a patent case.

The court rejected disqualification of the expert despite the fact that retaining counsel wrote “the first draft” of the expert’s report.

The court stated:

AMoHS moves to disqualify Mr. Brummel on several grounds, arguing first that the expert report is not his own work and was instead drafted by counsel. Federal Rule of Civil Procedure 26(a)(2)(B) requires that the disclosure of a testifying expert “be accompanied by a written report — prepared and signed by the witness.” Fed. R. Civ. P. 26(a)(2)(B). With respect to drafting, both sides cite Trigon Ins. Co. v. United States, 204 F.R.D. 277, 291-92, 295 (E.D. Va. 2001), which determined that:

[u]nquestionably, Rule 26 requires an expert witness to prepare his own Rule 26 Report. The Advisory Committee Notes accompanying this rule clarify the intended meaning of the phrase “prepared and signed by the witness”, explaining that a report can be “prepared” by an expert witness even if counsel has aided the witness in preparing an expert’s report. . . . [T]he report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness.

Within the Second Circuit, it has been held that “attorneys are not precluded from assisting expert witnesses in the preparation of their reports so long as the witness remains substantially involved.” Keystone Mfg. Co. v. Jaccard Corp., 394 F. Supp. 2d 543, 568 (W.D.N.Y. 2005).

Here, Mr. Brummel testified that he spent nearly 20 hours on his invalidity analysis, including reviewing documents and discussing issues and information with MMIC counsel. He also reportedly spent an entire day dictating his opinions in response to questions from counsel. While counsel prepared the first draft of the report, Mr. Brummel edited for accuracy and made necessary changes.

Given these attested facts, the Court finds that disqualification on the asserted basis is not warranted. Mr. Brummel has confirmed that the opinions set forth in the report are his own, and his testimony reveals substantial involvement in the report’s preparation. Furthermore, “[a]s the court noted in Keystone, the appropriate approach, when a party is faced with participation of counsel in the preparation of an expert report, is to present such facts to the finder of fact . . . . Exclusion is not the proper remedy.”

Attorney Joshua Gardner will be speaking on at the SEAK National Expert Witness Conference to be held on April 25-26, 2015 in Washington, DC.

How and Why Expert Witnesses Get Disqualified

Joshua Gardner

Attorney Gardner will discuss the admissibility of expert testimony and will demonstrate, through specific case examples, how to avoid some of the common pitfalls and traps concerning Daubert challenges. Attorney Gardner will offer practical advice to experts on specifically what experts should do when confronted with a Daubert challenge.

Joshua Gardner is an Assistant Director with the United States Department of Justice, Federal Programs Branch. He has led or participated in more than a dozen jury and bench trials since joining DOJ, many of which involve high profile constitutional challenges to agency actions. Josh has been responsible for all aspects of pre-trial and trial work, including serving and responding to written discovery, taking and defending fact and expert depositions, motions practice, oral arguments, and trials. Previously, Josh worked as a trial attorney in the National Courts Section of DOJ, where he was responsible for both trial and appellate work involving primarily contract disputes and takings claims. Before DOJ, Josh worked as an associate at a large Washington, D.C. law firm.  Josh has also been an adjunct professor at the George Washington University Law School since 2004, and currently co-teaches Pretrial Advocacy and Government Lawyering. In addition, Josh teaches a number of courses on behalf of DOJ concerning pretrial matters, trial advocacy and evidence at the National Advocacy Center in Columbia, SC, and on behalf of the Civil Division in Washington, DC. He also has presented on a number of topics on behalf of government agencies, including the Department of the Navy. Josh graduated from the George Washington University Law School and the University of Central Florida, and is licensed in Florida, the District of Columbia, and the Court of Federal Claims.