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Expert Opinions, Reports and Endorsements

In many instances, expert reports may be legally required by procedural rules or court order. Even when not required, reports from experts may foster settlement or avoid more formal, expensive, and time-consuming depositions.

Experts should be mindful that all expert opinions must be disclosed to the opposing side by way of either a report or an endorsement of the expert witness in discovery or pre-trial documents. If an opinion is not disclosed, it may be precluded. Therefore, clear communication of the expert's opinion is of utmost importance.

4.1­ A request for a formal expert opinion should be in writing. It should fully inform the expert concerning the purpose for which the opinion is sought. It should identify the parties to the claim and the party requesting the opinion. It should specify the information and documentation provided to the expert on which the expert opinion should be based. The request should preferably provide a brief summary of the case. The request should specify the issues to be addressed by the expert and the legal terminology, if any, involved or required. The request should list all information that the expert will be required by court rule to disclose. The request may recite the financial arrangements to which the expert and the attorney have agreed.

The request for a formal expert opinion is intended to alleviate any future misunderstandings concerning the nature, scope, and purpose of the expert's review and further involvement. In many cases, a request for a formal expert opinion may be preceded by a conference at which the expert's qualifications will be reviewed and the issues requiring the expert's opinion described. The information needed by the expert to complete the review will also be discussed. Information about the expert that must be disclosed because of court rules will be discussed. This information may include the qualifications of the expert, the expert's publications, and any previous cases in which the expert has testified at trial or deposition within the preceding four years. Financial arrangements will be agreed upon.

4.2 ­The attorney has the duty to determine the expert's legal competency to render opinions on a given issue. The expert should recognize the difference between a legal expert and an expert among his or her peers in a given specialty.

The attorney should be familiar with the legal rules of evidence governing competency of expert witnesses. It is the attorney's duty to make adequate inquiry into the expert's education, background, training, and experience to determine if the expert is legally qualified to address a given issue. An attorney should accept the limitations of the expert's expertise and avoid attempts to obtain opinions from an expert that are clearly beyond that expert's expertise.

At the same time, the expert should be aware that under the Colorado and Federal Rules of Evidence, an expert witness is one who by knowledge, skill, experience, training, or education, has sufficient knowledge and expertise to assist the trier of fact to understand the evidence or determine a fact in issue. To qualify as an expert for the purpose of testifying at trial, such an individual need not be a super-specialist or a university professor, nor must that person be recognized as an expert in a given subspecialty by the expert's peer group.

However, when an expert is testifying on the issue of standard of care in a medical negligence case, he or she is required to be substantially familiar with the applicable standards of care and practice as they relate to the act or omission in issue. The expert must also be in the same subspecialty or in a subspecialty with similar standards of care and practice as the defendant health care provider to testify with respect to standard of care issues. These restrictions do not apply to other testimony, such as degree of permanency of mental or physical impairment.

4.3­ A copy of all records and other documentation pertinent to the issues to be addressed by the expert should be furnished to a reviewing expert before a formal opinion is rendered.

Experts who have had direct contact with the patient-client may rely on their observations, findings, and records in rendering their opinion. For example, treating and examining physicians may legitimately rely upon the history, examination findings, radiological studies, and other test results which they acquire in their treatment or examination of a claimant.

However, non-treating physicians and experts who are retained or specially employed to independently evaluate or review an issue should be provided with all relevant documentation and records so that the opinions rendered are fully informed. The practice of providing only partial records which are favorable to a client's position is firmly condemned. If an expert requests further information which is reasonably available to the attorney, it should be provided. However, the expert should not be burdened with unnecessary, extraneous materials. Fair and unbiased summaries of depositions, records, or other facts may be provided to assist the expert in economically reviewing the issue involved.

The expert and retaining attorney should discuss the advantages and disadvantages of providing other experts' reports to the reviewing expert before he or she arrives at an opinion. Such disclosure of other experts' opinions may appear to affect the expert's independence and objectivity in his or her initial review.

Both expert and attorney should bear in mind that all documentation and information provided to the testifying expert, as well as all research, notes, reports, and other papers generated by the expert in his or her review of the claim, are discoverable by the opposing side.

4.4­ If the treating physician or expert in another field who has not been retained or specially employed to provide expert testimony has an opinion, he or she may be obligated to state it. It is unclear to what extent an expert may be required to form an opinion.

The extent to which experts may be required to formulate expert opinions is unclear. However, a physician and other expert can be compelled to state his or her observations concerning a patient or other event that he or she has witnessed and may be required to testify as to information acquired in the course of treating a patient or investigating a matter. If the expert has an opinion concerning an issue, he or she may be compelled to express it.

An expert may also be required to answer hypothetical questions. If the expert can answer the questions as posed, he or she must do so. If further facts or study are necessary to answer the questions, the expert may so state.

4.5 ­Expert witnesses should be advised of factual disputes concerning the underlying facts on which the expert opinion is to be based. Even though the expert is asked to assume a "hypothetical" set of facts, the expert witness should still be provided with all relevant facts and records.

Experts asked to review issues should understand that they are not the ultimate finders of facts. Therefore, there may be factual issues which are beyond the competence of an expert witness to resolve, as where there are discrepancies in various records or disagreements over certain conversations, etc. The expert may therefore be requested to assume the truthfulness of a "hypothetical" set of facts when formulating his or her opinion.

"Hypothetical" facts do involve real cases. The reviewing expert should still be provided with all relevant records and facts and is entitled to know the nature of the underlying dispute.

In responding to hypothetical questions, the expert witness should set forth the significant factual assumptions underlying his or her opinions, and may qualify an opinion by stating that it could change if different factual assumptions were made.

4.6 ­It is preferable that the expert's opinions be set forth in writing in the expert's own language. If an attorney makes an expert witness endorsement or summary in addition to, or in lieu of, an expert report issued by the expert, such an endorsement or summary should only be done after its contents have been carefully reviewed and approved by the expert.

Experts often prefer that their opinions be set forth in writing to avoid future misunderstanding concerning the nature, extent, and scope of the expert's review and opinions. The expert report also assures that the opinions are accurately communicated in the expert's own language.

In cases filed in the federal court, experts who are "retained or specially employed" to provide expert testimony in the case, or whose duties as an employee of a party to the case regularly involve giving testimony, must prepare and sign a written report. That report must contain a complete statement of all opinions to be expressed and the bases and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

In cases filed in state courts, the expert's opinions may be set forth in either a written report prepared by the expert or a summary of the expert's opinions prepared by the lawyer. The report or summary must contain a complete statement of all opinions to be expressed and the bases and reasons therefore. With regard to "retained or specially employed" experts, the report or summary must also contain the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. In state court cases, if a report has been issued by the expert, it must be provided whether or not a written summary of the expert's opinions is also provided to the court.

To avoid miscommunication, expert witness reports should be encouraged. However, when an affidavit or a pre-trial summary of expert testimony is drafted by the attorney in the attorney's own language, legal terminology should be fully explained, and it should not be tendered to the court or opposing counsel until its contents are fully approved by the expert to whom the opinions are attributed.

4.7 ­Expert reports should be promptly provided.

Physicians and other experts should recognize that there are often legal time restrictions and court-imposed deadlines concerning the submission of expert reports or the summary of expert opinions. Therefore, attorneys should retain the expert and request reports sufficiently in advance of such deadlines so as to avoid inconvenience and hardship to the reviewing physician or expert. At the same time, undue delay in providing expert reports may hamper settlement negotiations, cause otherwise unnecessary continuances of trial dates, create burdensome scheduling difficulties for later depositions, or otherwise prejudice the party's ability to use the expert witness at trial.

4.8­ An expert's report should be accurate and objective, and should fully and fairly address the issues presented. The author should be mindful of the legal terminology necessary to satisfy evidentiary rules concerning competency and burden of proof.

The expert should be aware of the significance and use of his or her reports. They play a vital role in the settlement process and in the necessary pretrial disclosure of expert witness opinions. The expert should therefore carefully review the attorney's request for the report and fully and objectively answer any special questions posed. Where legal terminology is required, the expert should attempt to set forth his or her opinions consistent with that necessary legal terminology.

4.9­ Unless otherwise requested, a report from a treating physician should generally include the following information:
(a)History of present illness
(b)Examination findings
(c)Pertinent radiological and other diagnostic test results
(d)Diagnosis
(e)Etiology and/or causation
(f)Treatment rendered
(g)Course and prognosis, including anticipated permanency and residual disability
(h)Future treatment options and needs
(i)Past and future medically related expense

Reports or summaries of opinions from other experts must contain a complete statement of all opinions to be expressed by the expert at trial and the bases and reasons for those opinions.

4.10­ A reasonable charge may be made for the time spent in preparing an expert's report, and payment may be requested in advance of the expert's release of the report.

Experts have the right to be reasonably compensated for preparation of reports. The amount, terms, and conditions of such payment should be handled at the outset, preferably in a written retainer agreement or a letter setting forth the expert's policies. (See § 9.2.)

4.11­ The furnishing of an expert report should never be conditioned upon payment of a bill for the underlying treatment or services. (See §9.7.)

4.12 ­Any expert is entitled to be advised whether he or she may be the subject of a professional liability claim if the expert is contacted by an attorney representing the claimant. If the expert is so advised, he or she should not provide a new written report to the attorney without first contacting his or her professional liability insurer and/or attorney. The expert must provide the complete records, unaltered, to the requesting party.

When an expert is contacted by a claimant's attorney and advised that he or she is being investigated as a possible defendant in a professional liability claim, the expert should not provide that attorney with new summary reports concerning the claim or facts underlying the claim. The complete records ­unaltered­ must be provided to the requesting party. The expert should also contact his or her professional liability carrier and/or attorney.

Similarly, attorneys investigating a potential professional liability claim against an expert should clearly state their purpose when requesting information from the expert about the claim.