Eye expert witnesses are obligated to follow certain legal requirements when providing written reports mandated by Federal Rule of Civil Procedure Rule 26. An eye expert witness who is “retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regualarly involve giving expert testimony” is required to prepare an appropriate report that he is also obligated to sign. Although an ophthalmologist that is contacted directly by counsel is designated as an expert, some courts have required reports from treating physicians.
Federal Rule 26 requires full disclosure of anticipated testimony of an expert to reduce costs associated with expert discovery. An expert report gives opposing counsel a reasonable opportunity to prepare cross examination and arrange for possible rebuttal from other experts. In many situations, an expert report provides information that can be used for a well-informed decision regarding settlement.
An appropriate eye expert report must contain the following elements:
1) A complete statement of all the opinions of the expert and the rationale for them;
2) The facts or data considered by the expert in forming his opinions;
3) Any exhibits that the expert uses to summarize and support his opinions;
4) A description of the expert’s qualifications, including a list of all puiblications authored by the expert in the previous ten years;
5) A list of cases in which the expert as testified at deposition or trial during the previous four years;
6) A statement of compensation to be paid for participation in the case.
Retaining counsel can be very helpful to experts by ensuring that an expert report contains opinions that are clearly elucidated and supported by relevant information. Opinions are subject to careful scrutiny. The facts on which the opinions are formed, the methods utilized to interpret facts, and the logic to formulate opinions are carefully analalyzed. By the same token, information considered by an expert, but not relied on, can also be of importance when understanding the perspective of an expert and analyzing the validity of his opinions. Courts commonly require disclosure of all materials reviewed by an expert, and cross examination can reveal why specific material was rejected and not determinative in arriving at an opinion.
A net opinion is an unsupported statement that should not be incorporated in an expert report. Similarly, opinions that are contingent on events that “could” or “may” have occurred, or findings that “suggest” a possible scenario, are insufficient for inclusion in an expert report. Opinions proferred by an eye expert are strongest when they are clearly supported by factual logic.
Signing of a report by the expert is mandated under Federal Rule 26 for good reason. A signed report assures the parties that “…the expert has freely authorized and adopted as his own and not merely for appeasement or because of intimidation or siome undue unfluence by the party retained by him.” (Marek v. Moore, 171 F.R.D. 298, 302 (D. Kan. 1997) Although an expert may have others assist in the preparation of his report, his signature signifies his final repsonsibility in the expression and content of the report.
Opposing counsel has the right under Federal Rule 26 to depose individuals who have been designated as an expert. If a report is required, the deposition may be conducted only after a report is provided. Draft reports prepared by experts are generally protected from disclosure. By the same token, communication between an expert and retaining counsel regarding his expert witness report is protected with the following important exceptions:
1) Compensation of the expert;
2) Identification of facts or data provided by retaining counsel that were considered by the expert in formulating his opinions;
3) Communication of assumptions provided by retaining counsel.
Of course, all communication between an expert and counsel is subject to discovery in order to determine applicability of these exceptions. An expert who claims priviledge or protection of materials used for trial preparation is required to expressly file a claim of such with the court. The expert is obligated to preserve the contested material in his possession until his claim is resolved.
Reports submitted by an eye expert under Federal Rule 26 are subject to stringent requirements. An expert report that clearly elucidates opinions and the basis of those opinions can be a valuable resource in litigation. Eye expert witness reports that comply with Federal Rule 26 will be able to stand up under close scrutiny.