710 F. Supp. 2d 1092 - McClellan v. I-Flow Corp.’s Empirical Analysis

Citation profile

1 federal appellate · 3 district ·

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 11 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “Given the evidence presented, it cannot be disputed that Mr. Wihtol authored the report, while [the expert surgeon] reviewed and edited it. In fact, [the expert surgeon] informed Wihtol that part of the report sounded more like “an attorney making his case than a doctor giving his opinion,” and that the language should be “toned down” to avoid the appearance of putting “words in [his] mouth,” While I recognize the realities of litigation often necessitate counsel’s assistance in the preparation of expert reports, the extent of Mr. Wihtol’s role in drafting [the second expert surgeon’s] report approaches the outer limits of acceptable assistance, Nevertheless, I do not exclude [the second expert surgeon’s] testimony on this ground. Importantly, [the second expert surgeon] conducted his study and formulated his opinion prior to his retention as an expert. Further, through his deposition testimony, [the second expert surgeon] adopted the substance of his report and explained the basis for his opinion---Thus, counsel’s involvement does not warrant exclusion of [the second expert surgeon’s] testimony, though “it may undermine its weight and credibility,””

   1 later decision quote this exact passage · from the concurrence
   e.g. Gerke v. Travelers Casualty Insurance Co. of America

2. “The advisory committee note observes that Rule 26(a)(2)(B) does not preclude counsel from providing assistance to the experts in preparing the reports and recognizes that such assistance may be necessary. Courts have followed the advisory committee note and found that counsel may assist the expert in preparing the report, as long as the attorney does not change the substance of the opinion of the expert witness____ When a challenge is raised as to whether the expert actually prepared the report, courts focus on whether the expert witness offered substantial input into what was put into the report. Whether counsels’ assistance in preparing an expert report violates Rule 26 is a fact-specific inquiry. The fact that counsel helped with preparation of an expert report goes to the weight to be accorded to the opinions, rather than admissibility.”

   1 later decision quote this exact passage · from the concurrence
   e.g. Gerke v. Travelers Casualty Insurance Co. of America

3. “Thus, not only did Mr. Wihtol create the idea for the 396-study, provide the raw patient data for the study, and select the nurse to perform data extraction for the study, Mr. Wihtol also compared his (or his “team’s”) findings from the data with those of [the expert surgeon] and encouraged [the expert surgeon] to do the same, identified patients who should be diagnosed with chondrolysis, conferred with [the expert surgeon] to “correct” diagnoses of chondrolysis, and directed [the expert surgeon] to include certain patients in the study. Contrary to plaintiffs’ strenuous assertions, Mr. Wihtol was more than a “mere conduit” for the delivery of raw data.”

   1 later decision quote this exact passage · from the concurrence
   e.g. Gerke v. Travelers Casualty Insurance Co. of America