Summary
rejecting expert report that failed to "adequately identify the 'facts or data' considered by the witness in forming his opinions"
Summary of this case from Oleg Cassini, Inc. v. Electrolux Home Prods., Inc.Opinion
10 Civ. 04157(RKE)
05-01-2012
JINGHONG SONG, Plaintiff, v. YAO BROS GROUP LP and CHENGWAN YAO, Defendants.
MEMORANDUM AND ORDER
Richard K. Eaton, Judge
Defendants move to exclude the testimony of plaintiffs expert Hearst Zhang on the grounds that his proffered expert report failed to meet the disclosure requirements of Fed.R.Civ.P. 26(a)(2)(B). For the reasons that follow, the court excludes Mr. Zhang's testimony.
BACKGROUND
In support of her negligence claim, plaintiff seeks to introduce Hearst Zhang as an expert she retained co opine on the industry standard of care for options traders and defendants' failure to conduct themselves in accordance with that standard in investing plaintiffs money. On August 19, 2011, Mr. Zhang produced his half-page export report. The report is attached as Exhibit A.
Mr. Yao was to be paid a fee for his services.
Defendants concede that the report was timely filed, but insist that Mr. Zhang's report fails to meet the requirements of Rule 26. Rule 26(a)(2)(B) provides that an expert disclosure must be accompanied by a written report-prepared and signed by the witness—it the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits (hat will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
The Advisory Notes to Rule 26 make clear that subsection (a)(2)(B), added as part of the 1993 amendments to the Federal Rules, requires that an expert “prepare a detailed and complete written report, stating the testimony the witness is expected to present during direct examination, together with the reasons therefore.” The Advisory Notes also state that, under Rule 37(c)(1), “a party will not ordinarily be permitted to use on direct examination any expert testimony not so disclosed.” Zhang's “report” fails to comply with Rule 26(a)(2)(B) in several respects.
First, the report does not provide a “complete” statement of the basis and reasons for Zhang's opinion. In addition to its brevity, the report contains only vague references to general items considered by Zhang. such as “the rules, professional, and conventional standards in the trade of S&P 500 index and other futures contracts ” The report docs not identify the source of these “rules” and “standards,” and docs not specify what they require. Similarly, Mr. Zhang claims to base his opinion upon an examination of “explanations of Chengwan Yao” provided to plaintiff. Again, however, the report does not specify what those representations were, when they were made and in what form, or why they do not meet the unspecified "rules” and ‘'standards.” Moreover, according to the report, Zhang concluded that defendant Yao was “lacking any sense of responsibility and effective risk control" and his "trading method reveals he is NOT a rational investor nor speculator hut a GAMBLER.” This bald conclusion docs not indicate how and why this decision was reached. Given these deficiencies, it was virtually impossible for defendants to adequately prepare for cross-examination or to identify whether a rebuttal expert was necessary. Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 742 n.6 (7th Cir. 1998) (“Expert reports must include 'how' and 'why' the expert reached a particular result, not merely the expert's conclusory opinions."); Koppel v. N.Y. State Bd. of Elecs., 97 F.Supp.2d 477. 482 (S.D.N.Y. 2000).
Second, the report likewise docs not adequately identify the “facts or data" considered by the witness in forming his opinions as required by Rule 26. In this regard, the report only vaguely references unidentified standards and rules as the source of what Zhang opines to be standard of care, which he claims defendant failed to meet based on his examination of certain unidentified “explanations'' given to plaintiff at unspecified times. Maurizio v. Goldsmith. 96 Civ. 4332 (RPP), 2002 U.S. Disc. LEXIS 6032, at[*] 12-13 (S.D.N.Y. Apr. 9, 2002) (finding that permitting an expert to testify where “no supporting facts or data arc provided, would make a mockery of Rule 26(a)(2)(B)”).
Third, the report does not identify any exhibits to be used in support of Mr. Zhang's opinions.
Fourth, the report does not adequately list the witness' qualifications. It merely states chat “Witness has been working the trade for over 20 years.'' What “trade” is not specified, and there is no indication that the witness has any relevant experience with the type of investing defendants were doing, or why that experience would qualify Zhang to offer his opinion in this case, Koppel, 97 F.Supp.2d at 481 (excluding testimony based, in part, on the expert's failure to identify expertise specific to the area in which he opined).
Finally, the report does not provide a list of all publications Zhang authored in the previous ten years, nor does it list all other cases during the last four years in which the witness has testified.
CONCLUSION AND ORDER
Based on the foregoing, the court finds that the expert report prepared by Hearst Zhang failed to comply with the requirements of Fed.R.Civ.P. 26(a)(2)(B). It is therefore
ORDERED that Mr. Zhang is precluded from testifying as an expert in the trial of the above-captioned action.
It is SO ORDERED.
EXHIBIT A
Expert Witness Report
August 19, 2011
I. Opinion
Having considered the rules, professional, conventional standards in the trade of S&P 500 index and other futures contracts by using margin, option and leverage, as well as the practice and explanations of Chengwan Yao on behalf of Yao Bros Group LP provided to the client, I am of the opinion that
Yao Bros Group LP failed to protect customers' assets by mis-managing the risk and mis-informing the true reason of such a huge loss.
The real reason is NOT the market but himself lacking any sense of responsibility and effective risk control. The trading method he applied reveals he is NOT a rational investor nor speculator but a GAMBLER. His trading method typically generates small profits in normal market conditions but large losses including a total wipe-ont in special market conditions.
The email dared October 6, 2008 he sent to the client failed to address the real issue of the total loss. By any professional and conventional standards, his explanation is absolutely unacceptable and Yao Brothers must take the full responsibility for the loss.
2. Work experience.
Witness has been working in the trade for over 20 years.
3. Compensation to be paid for the study and testimony in the case
Witness will be paid $ 1,000 for the service.
Witness: Hearst Zhang
[*] Judge Richard K. Eaton of the United States Court of International Trade, sitting by designation.