Commercial Litigation and Arbitration

Expert Report Dictated to Counsel, Who Prepared and Signed It, Not Excluded — Counsel as Scrivener — Absence of Expert’s Signature Insufficient to Preclude Report or Testimony

Bryntesen v. Camp Automotive, Inc., 2015 U.S. Dist. LEXIS 7371 (D. Ida. Jan. 20, 2015):

3. Expert James Bower

Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity of any expert witness. The disclosure "must be accompanied by a written report -- prepared and signed by the witness -- if the witness is one retained or specifically employed to provide expert testimony in the case. . . ." Fed. R. Civ. P. 26(a)(2)(B). The report must contain certain information outlined in Rule 26(a)(2)(B)(i-vi). A party must supplement or correct its disclosure if necessary. Fed. R. Civ. P. 26(e).

Here, the Court's Case Management Order required Plaintiffs to disclose their experts on or [*10]  before September 15, 2014. Dkt. 30. Plaintiffs timely disclosed James Bower as an expert witness, and filed a document titled "Plaintiffs Expert Witness Disclosure." Dkt. 60. That document addresses the items listed in Rule 26(a)(2)(B)(i-vi), but it appeared to be written by someone other than Bower because it refers to Bower in the third-person. ... The document is signed by Plaintiffs' counsel.

On October 20, 2014, Plaintiffs provided the opposing parties with a "corrected" version of the document. That document is essentially the same as the initial document, except that it does not refer to Bower in the third-person, and it is signed by Bower. It also includes a new introductory paragraph which indicates that the initial document contained "the verbal opinions prepared (dictated) by me [Bower] verbally, which were typed and reviewed for my final approval prior to filing." Schmidt Decl., Ex. C, Dkt. 73. Plaintiffs claim to have provided this document to the opposing parties as a corrected expert report pursuant to Rule 26(e). Plaintiffs assert that they corrected a formatting issue, changing the language from the third to the first person, and added Bower's signature.

The advisory committee notes to Rule 26 address [*11]  the intended meaning of the phrase "prepared and signed by the witness." They explain that a report can be "prepared" by an expert witness even if counsel has aided the witness. The advisory committee notes specifically state that "Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with [certain] experts . . . this assistance may be needed. Nevertheless, the 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." Fed. R. Civ. P. 26(a)(2)(B) (1993 advisory committee notes).

This Court has previously noted that given this amplification in the advisory committee notes, if counsel acts as a scrivener, and the expert supplies the substantive content for the written report, the report is nonetheless "prepared" by the expert within the meaning of the rule. Weeks v. Ohio Nat. Life Assur. Corp., 2011 WL 6140967, *4 (D.Idaho 2011) (citing Crowley v. Chait, 322 F.Supp.2d 530, 543-45 (D.N.J.2004); Wilderness Dev., LLC v. Hash, 2009 WL 564224, at *4 (D.Mont.2009). That appears to be the case here. Although counsel, acting as scrivener, should have prepared the report using first-person language, the report nevertheless contained the opinions dictated by Bower, and it reflects the testimony he intends to give at trial. [*12]  Accordingly, the Court finds that the report was prepared by Bower, and that it was properly supplemented to rephrase scrivener errors.

With regard to the missing signature, it appears that counsel failed to understand or comply with the clear language of the rule -- which is why counsel, not Bower, signed the first disclosure. However, as many other courts have found, excluding an expert from testifying because of a missing signature is too punitive. See e.g. Wilderness Development, LLC v. Hash, 2009 WL 564224, *4 (D.Mont. 2009), Jenkins v. Bartless, 487 F.3d 482, 488 (7th Cir. 2007), Abel v. City of Algona, 2008 WL 3545048, *2 (W.D.Wash 2008). Instead, the report should be cured by adding the expert's signature. Here, Bower signed the corrected disclosure, which was substantively identical to the first disclosure.

"If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Here, the errors in the initial report were harmless because the other parties were provided with the complete substance of Bower's report in a timely fashion. Accordingly, the Court will deny the motion to exclude Bower as an expert witness.

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