Article written by:
Keith Hock, CPA, CFF, MAFF, CVA
Director of Forensic and Dispute Advisory Services
Most accountants are affectionately (we hope) called “numbers people.” We like numbers and we like analyzing numbers. The Forensic and Dispute Advisory team here at GBQ is often doing the “number crunching” part of a lawsuit or other dispute. And until recently, if we were experts crunching numbers in an Ohio state court case, the state rules didn’t require us to issue a written report to accompany our spreadsheets and schedules (although local rules did sometimes require them). This was often fine with us (see above – we are numbers people) and not having to issue a written report spared us from having to channel our “inner Hemingway” from time to time.
But those days are over – Hemmingway, here we come! Effective July 1, 2020, Ohio amended its Rules of Civil Procedure to require expert reports in almost all instances (and the exception for treating physicians will not typically apply to accounting, damages and valuation experts). Ohio Rules of Civil Procedure section 26(B)(7)(b) now reads (emphasis added):
The reports of expert witnesses expected to be called by each party shall be exchanged with all other parties. The parties shall submit expert reports and curricula vitae in accordance with the time schedule established by the Court. The party with the burden of proof as to a particular issue shall be required to first submit expert reports as to that issue. Thereafter, the responding party shall submit opposing expert reports within the schedule established by the Court.
This section also establishes that the party with a burden of proof with respect to a particular should submit their expert reports first – a useful clarification when there are counterclaims that can make the expert disclosure sequence unclear when case management plans designate “plaintiff” and “defendant” disclosure deadlines.
In addition to the curricula vitae required in (b) above, section 26(B)(7)(c) puts forth some other content and timing requirements that must be met by the newly required expert reports (emphasis added):
The report of an expert must disclose a complete statement of all opinions and the basis and reasons for them as to each matter on which the expert will testify. It must also state the compensation for the expert’s study or testimony. Unless good cause is shown, all reports and, if applicable, supplemental reports must be supplied no later than thirty (30) days prior to trial. An expert will not be permitted to testify or provide opinions on matters not disclosed in his or her report.
While it was nice to occasionally be “spared” writing an expert report, being presented with schedules from an opposing expert without an accompanying report was often frustrating because schedules can be hard to understand without some accompanying narrative. As a result, we understand the reason for the rule change and hope that providing reports in all state court cases will make both side’s expert’s positions clearer (in a more timely manner) and streamline depositions.
As an aside, the rules generally protecting draft reports and other expert communications with counsel from discovery (sections 26(B)(7)(f) and (g)) are unchanged by the new amendments.
While it is clear from the amendment that it is effective for all new matters filed after July 1, 2020, it appears that experts may be able to “dodge” one last report if “application [of the new rules] in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies.”
We interpret this to mean that a report might not be required in pending cases where, for example, expert disclosures and depositions have already been made and taken. However, it seems to us that, “when in doubt, write it out” is the best course of action going forward when serving as an expert witness in Ohio state court.