Attorneys Can Assist In Drafting Expert Reports, But Experts Must Substantially Participate

Plaintiff Tech Pharmacy argued that the testimony of defendants' expert should be excluded under Daubert because the expert's report offered no independent analysis and simply parroted arguments from defendants' Alice motion for summary judgment and from another expert's report. Defendants noted that, while Rule 26(a)(2)(B) requires that an expert report be "prepared and signed by the witness," counsel is not precluded from providing assistance to experts in preparing their reports.

Addressing the permissible amount of attorney involvement in drafting an expert report, the court concluded that, "as long as the substance of the opinions is from the expert, the attorney's involvement in the written expression of those opinions does not make them inadmissible." However, the court cautioned that, while some attorney involvement in the preparation of an expert report is permissible, allowing an expert to sign a report drafted entirely by counsel without prior substantive