Robert Ambrogi – IMS ExpertServices – October 14, 2013
Federal courts prohibit expert witnesses from testifying unless they first file a written report of the opinions they will give and the facts they relied on in forming them. But is it ever acceptable for two separate experts to file a single, joint report?
Yes it is, according to a recent opinion of the 10th U.S. Circuit Court of Appeals. If two experts review the same materials, come to the same opinions, and are prepared to testify to all the opinions in the report, there is no reason to prevent them from filing a joint report, the court said.
The ruling came in a dispute between an accountant and his former clients. The accountant, Dale K. Barker Jr., had been retained by Larry and Patricia Sumrall to help resolve past-due federal taxes. Eventually, the Sumralls were required to pay the IRS $222,000 in taxes, penalties and interest.
After the IRS matter was closed, Barker and his accounting firm sued the Sumralls, alleging they owed him unpaid fees. The Sumralls counterclaimed against Barker, contending his work for them had been negligent and that he had breached his fiduciary duty.
After a bench trial, a federal district judge in Utah concluded that Barker’s services had been deficient and resulted in the Sumralls having to pay the IRS much more than they should have. The judge held that the Sumralls owed nothing to Barker but that Barker was liable to the Sumralls for their damages.
Experts File Joint Report
At trial, the Sumralls presented the testimony of two experts, each of whom agreed that the Sumralls could have settled the claim with the IRS for $151,704, or more than $70,000 less than they ended up paying to the IRS. In calculating the damages Barker owed the Sumralls, the judge relied on this testimony.
Barker’s appeal to the 10th Circuit raised a number of issues, including several involving expert testimony. In particular, he challenged the testimony of the Sumralls’ two experts. He contended that the trial judge erred in allowing them to file a joint expert report, arguing that Federal Rule of Civil Procedure 26 required each expert to file his own report.
Rejecting this argument, the 10th Circuit said that there is no reason that a joint expert report is “always and inherently impermissible.” In this case, the two experts had reviewed the same materials and, working together, reached the same opinions, the court noted.
“Because they were both prepared to testify to all the opinions in the report, we see no reason why it would be inherently impermissible for them to file a joint report,” the court said.
Little Precedent on Point
In reaching this conclusion, the 10th Circuit cited not a single case as precedent for the proposition that two experts may file a single report. Rather, noting that “co-authored expert reports aren’t exactly uncommon,” it cited three cases in which joint reports were filed.
In one, Miller v. Pfizer, Inc., 356 F.3d 1326, 1332-34 (10th Cir. 2004), the court in a wrongful death case appointed two independent medical experts to review the methodology and conclusions of the plaintiffs’ expert. The court’s order specified the materials these experts were to review. Upon completing their review, the two experts submitted a joint report.
In another, 103 Investors I, L.P. v. Square D Co., 372 F.3d 1213, 1215 (10th Cir. 2004), two fire experts filed a joint report regarding the cause of a fire in plaintiff’s building. Although the appellate decision noted this fact, it did not discuss it further or rule on the propriety of a joint report.
In the third, Ruff v. Ensign-Bickford Indus., Inc., 168 F. Supp. 2d 1271, 1286-87 (D. Utah 2001), two medical experts filed a joint report challenging the conclusions of plaintiffs’ medical expert. Here again, other than note that the report was filed jointly, the court did not discuss the propriety of it.
Not Always Appropriate
Although the 10th Circuit saw no problem with the joint expert report in this case, it noted that there are circumstances where a joint report “could prove problematic.” As an example, the court described a situation where “it isn’t clear whether both experts adhere to all of the opinions in the report and they do not delineate which opinions belong to which expert.”
The court pointed to a case out of New Mexico, Dan v. United States, 2002 WL 34371519 (D.N.M. Feb. 6, 2002), where a joint report was rejected. In that case, the plaintiffs submitted a joint report for two experts, a doctor and a nurse. The court rejected the report, not because it was joint, but because it constantly flip-flopped between the use of “I” and “we” in describing its conclusions, making it “difficult, if not impossible, to determine which witness is offering an opinion on what subject.”
The lesson of these cases, then, is that two experts can file a joint report, providing they line up on all fours. If they have reviewed the same facts or data, reached the same opinions, and are both prepared to testify to the same opinions, then a joint report is appropriate. But if they differ in what they reviewed or in the opinions they reached, they either should file a joint report that is clear and explicit about those differences or, better yet, file separate reports.
The case is Barker v. Valley Plaza, No. 12-4147 (10th Cir., Sept. 17, 2013).