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March 13, 2015 Practice Points

Expert Report Ghostwriting Leads Court to Disregard Expert Testimony

Hiring an expert consultant—what not to do.

By Lindsey Dean

Dr. Vincent Rue held himself out as an expert in the late '80s and early '90s; however courts found that he lacked academic qualifications and professional experience necessary to rely on his testimony and they found his work "lacked analytical force." Hodgson v. State of Minn., 648 F. Supp. 756, 768 (D. Minn. 1986). Rue's professional work was never accredited by a peer-reviewed journal as they found his work to have "no value" and to be "based upon a priori beliefs rather than an objective review of the evidence." Planned Parenthood v. Casey, 744 F. Supp. 1323, 1333 (E.D. Penn. 1990).

Despite his lack of credible background, several states have recently hired Rue as a litigation consultant for other experts. In a Texas trial, four of the five state experts changed their testimony when emails showed that Dr. Rue was the true author of their purported expert reports. One expert, Dr. Deborah Kitz, testified under oath that she was the author of her rebuttal report, yet in an email to Rue she wrote, "I see 'my' report that you returned to me yesterday references my review of a report from a Dr. Layne-Farrar. I've never seen that report." Another email revealed that another expert, Dr. Peter Uhlenberg, asked Rue what to do about contradictory evidence, and Rue suggested that Uhlenberg leave the information out of his report. Id. In its opinion on the Texas case, the court found that

although the experts each testified that they personally held the opinions presented to the court, the level of input exerted by Rue undermines the appearance of objectivity and reliability of the experts' opinions. Further, the court is dismayed by the considerable efforts the State took to obscure Rue's level involvement with the experts' contributions.

Whole Women's Health, et al. v. David Lakey, M.D., et al., 2014 U.S. Dist. LEXIS 124500, at *7–8 (W.D. Tex. 2014).

Later in 2014, one of the same experts who had used Rue as a ghostwriter in the Texas case was further discredited in an Alabama case. In the Alabama case, Dr. James Anderson admitted that his supplemental report had been drafted in its entirety by Rue and that Anderson himself had not independently verified the information he signed his name to as his opinion. The court found that Rue's involvement "reached beyond the typical involvement of an attorney or litigation consultant in helping an expert put his opinions into words or providing background research." The court was "struck by the flimsiness of Anderson's basis for reliance on Rue" as Anderson did not attempt to find any information on Rue's background or prior history. Planned Parenthood Southeast, Inc. et al. v. Luther Strange, et al., 33 F. Supp. 3d 1381, 8–14 (M.D. Ala. 2014).

The Texas case is undergoing appeals in the Fifth Circuit. The Alabama case has not been appealed.

Lindsey Dean is a CPA at Veris Consulting.

Keywords: expert witnesses, litigation, ghostwriting, Vincent Rue, consultant, credentials

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