The court, in Gerke v. TRAVELERS CASUALTY INSURANCE COMPANY, Dist. Court, D. Oregon 2013, dealt with expert witness Robert Painter.

At his deposition, counsel asked him if anyone else helped him write his report.

During Painter’s November 16, 2012, deposition, defense counsel asked Painter whether anyone other than Painter wrote any portion of his October 22, 2012, report. (Deposition of Robert Painter (“Painter Dep.”) 46.) Plaintiff’s counsel asserted the attorney work-product privilege and instructed Painter to answer the question without disclosing “communications with counsel.” (Painter Dep. 47.) Plaintiff’s counsel then asked Painter: “Outside of that universe, did anyone help you write the report?” (Painter Dep. 47.) “No,” was Painter’s answer. (Painter Dep. 47.) Defendant’s counsel then asked Painter whether Plaintiff’s counsel or any member of his firm wrote portions of Painter’s report; Plaintiff’s counsel again asserted the attorney work product privilege and instructed Painter not to answer the question, (Painter Dep. 47-48.) Defendant’s counsel responded that they were “entitled to know if [Plaintiff’s counsel] or the members of [his] firm wrote any of the report.” (Painter Dep. 48.)

Counsel subsequently contacted the court for assistance in resolving this and other disputes that arose during Painter’s deposition. After hearing from all counsel on this issue, the court ruled as follows:

THE COURT: All right. There is one other issue not covered by that order, and that is the question whether anyone else wrote any portion of Mr, Painter’s report that has been produced to defense counsel. That is a proper question, and Mr. Painter has to answer it.

It is not uncommon for retained experts to have assistants or junior engineers, for example, prepare portions of reports under the supervision of the consulting expert. That may or may not be the case here with Mr. Painter. And there may have been other individuals who prepared text, paragraphs, sections, portions of the report. Mr. Painter is required to answer that question and identify the people who may have drafted any portion of his report, and he has to identify the portions of the report that those other individuals drafted.

MR. THENELL: Including anybody from the plaintiff’s office, correct? Plaintiff’s attorney’s office?

THE COURT: That’s exactly right.


MR. FOSTER: Well, Your Honor, I’d like to make a record on that point.

THE COURT: Well, you can. But let me make a point first. Mr. Foster, if you or any lawyer in your office wrote portions of Mr. Painter’s report, sent them to him, and told him to include that in his report, that is discoverable by the defendants. That is not work product.

MR. FOSTER: Well, Your Honor, you are the judge. I would like to make a record that —

THE COURT: Well, go ahead.

MR. FOSTER: — under Rule 26(b)(4), drafts, as I read the rule, are strictly protected from exclusion — or from production.

THE COURT: Drafts are, but if you wrote a paragraph or a section of his report, sent it to him, and told him to include it, that goes directly to Mr. Painter’s credibility. It’s one thing to talk to the expert about the topics to be covered and any gaps, holes, or lack of clarity in an expert’s report. But if you write portions and he adopts them or incorporates them in their entirety or in substantial form, then that goes to Mr. Painter’s credibility because, Mr. Foster, you are not the expert; Mr. Painter is. This is supposed to be his opinion, not the opinion of his lawyer or his client. And that goes at least to the credibility of the expert’s testimony, and it may well go to the admissibility at trial or on motion of the expert’s opinion. Because then you have a [Daubert] issue.

So, I know what the rule says. I also know that lawyers are not supposed to write their experts’ reports or any portion of them, And if that’s happened here, then that goes to credibility and it goes to admissibility, and Mr. Painter has to answer those questions.

Here, the record gives rise to the question whether Plaintiff’s counsel’s involvement in the creation of Painter’s expert report exceeded Rule 26’s limits. First, Painter’s deposition testimony suggests that Plaintiff’s counsel might have authored portions of Painter’s final report. Painter acknowledged Plaintiff’s counsel changed his preliminary report after Painter entailed it to him, and he could not identify the portions of his October 22, 2012, final report that Plaintiff’s counsel wrote without comparing the final report to his October 18, 2012, preliminary report. Although Painter testified the final report’s conclusions and opinions were his, that statement does not create a barrier to further inquiry. McClellan makes clear that the expert’s adoption or ratification of a lawyer’s changes and additions to the expert’s report does not preclude opposing counsel from learning how the lawyer’s contributions affected the expert’s final opinions, and it does not insulate the expert’s opinion from either evidentiary exclusion or challenge through impeachment.

The court held:

Accordingly, additional disclosure of communications between Plaintiff’s counsel and Painter are warranted, as is a continuation of Painter’s deposition to permit further inquiry on this topic by Defendants’ counsel. Disclosure includes materials and communications Painter considered, which include any materials he reviewed or received even if he did not rely upon them in reaching his opinions.