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September 30, 2019 Practice Points

Excluding Expert Opinions Endorsed but Not Prepared by the Expert

Let experts prepare their opinions after conducting their own review of the facts and law.

By Michael Roundy

The touchstone for the admission of expert testimony in evidence is that it will "help the trier of fact to understand the evidence or to determine a fact in issue," under Federal Rule of Evidence 702. Consonant with that purpose, the courts serve as the gatekeepers for expert testimony, making a preliminary determination as to the reliability and usefulness of the testimony before allowing it to be submitted to the jury for consideration. While this determination often turns on the expert's qualifications, or on how well established the expert's methods are, it can also relate to other issues. In the Second Circuit’s decision in Puppolo v. Welch, for instance, the court of appeals affirmed the district court's exclusion of an expert opinion (and grant of partial summary judgment) where the expert merely reviewed and made minor revisions to an opinion prepared for him by the plaintiff's counsel. Puppolo v. Welch, 18-2601 (2nd Cir., June 20, 2019), affirming district court, 5:14-CV-95 (D. Vt. Sept. 12, 2017).

The Second Circuit’s Puppolo decision has a convoluted back story. After her aunt died from an alleged fentanyl overdose in 2003, the plaintiff hired Attorney #1 to file a wrongful-death lawsuit against her aunt’s nursing home and healthcare provider. Then, after Attorney #1 failed to file suit within the statute of limitations, the plaintiff hired Attorney #2 to file a legal-malpractice lawsuit against Attorney #1. That case went to trial, but resulted in a defense verdict for Attorney #1. And so the plaintiff hired yet another attorney, Attorney #3, to bring a second legal malpractice action against Attorney #2 for failing to adequately prosecute the claims against Attorney #1—this being the case that eventually made its way to the second circuit in Puppolo.

After being engaged, Attorney #3 hired Attorney #4 to provide an expert opinion as to Attorney #2's alleged legal malpractice. And before trial, the plaintiff produced three written opinions on behalf of Attorney #4. The first two opinions had been made before the defendant (Attorney #2) had been deposed, and without the benefit of having examined Attorney #2’s file on the suit against Attorney #1. The first two disclosures were also very brief. They identified a number of things that Attorney #2 had purportedly done wrong in prosecuting the claims against Attorney #1, including failing to call certain witnesses, failing to make use of certain evidence, and eliciting harmful testimony from the defendant himself. However, the first two opinions of Attorney #4 failed to include any significant analysis of the facts or law related to his opinions.

In contrast to the first two written opinions, the third written opinion was disclosed after the deposition of Attorney #2, and contained a more extensive discussion of facts and legal analysis relating to Attorney #4 opinions that Attorney #2 had committed legal malpractice. The defendant (Attorney #2) moved to exclude all three opinions of the plaintiff's expert, Attorney #4, and also moved for summary judgment on the legal-malpractice claim against him.

While the defendant did not challenge Attorney #4's qualifications as an expert in legal-malpractice claims, and the court assumed therefore that he was so qualified, the court nonetheless excluded all three expert opinions. The court found that Attorney #4’s first two written opinions lacked the "intellectual rigor" that characterizes the practice of his field of expertise, and failed to account for countervailing facts. The court stated that the opinions would not assist the jury, given the "significant analytical gap" between the opinions stated and the applicable facts and law.

The court stated that the third written opinion should be excluded for the same reasons, and also because, as Attorney #4 had admitted at the Daubert hearing on his opinions, the third written opinion had been prepared for him by plaintiff's counsel (Attorney #3). Attorney #4 had reviewed and made only minor edits to the third opinion, and had not himself performed the legal research reflected in the opinion. The court concluded that Attorney #4, under such circumstances, was “merely a conduit for the opinions of plaintiff and her counsel,” and that his testimony was inadmissible because it was not the product of his own independent analysis. Without expert testimony, the plaintiff lacked evidence necessary to establish the elements of legal malpractice, so the court granted summary judgment as to that claim.

The court of appeals affirmed the district court's decision, finding no abuse of discretion in the exclusion of Attorney #4’s expert opinions. The Second Circuit noted that the Federal Rules of Evidence and related case law do not require the admission in evidence of testimony connected to the facts only by the ipse dixit of an expert.

If the primary lesson of this case—let the expert prepare his or her own opinions after conducting his or her own review of the facts and law—is too obvious, perhaps the subtler lesson is more instructive: It is not only an expert's qualifications or methods that may be challenged when trying to exclude his or her opinions from evidence. Careful considerations of the underpinnings of expert testimony may reveal additional reasons to question the reliability of the proffered evidence, or its ability to assist the trier of fact.

Michael Roundy is a partner at Bulkley Richardson in Springfield, Massachusetts.

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