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`NUVASIVE 1015
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`IPR2013-00206
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`FEDERAL COURT OF AUSTRALIA
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`Practice Note CM 7
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`EXPERT WITNESSES IN PROCEEDINGS DI THE
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`FEDERAL COURT OF AUSTRALIA
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`Rule 23.12 of the Federal Court Rules 2011 requires a party to give a copy of the following
`guidelines to any witness they propose to retain for the purpose of preparing a report or
`giving evidence in a proceeding as to an opinion held by the witness that is wholly or
`substantially based on the specialised knowledge of the witness (see Part 3.3 - Opinion of
`the Evidence Act 1995 (Cth)).
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`The guidelines are not intended to address all aspects of an expert witness’s duties, but are
`intended to facilitate the admission of opinion evidence], and to assist experts to
`understand in general terms what the Court expects of them. Additionally, it is hoped that
`the guidelines will assist
`individual expert witnesses to avoid the criticism that
`is
`sometimes made (whether rightly or wrongly) that expert witnesses lack objectivity, or
`have coloured their evidence in favour of the party calling them.
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`General Duty to the Court2
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`1.1 An expert witness has an overriding duty to assist the Court on matters relevant to the
`expert’s area of expertise.
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`1.2 An expert witness is not an advocate for a party even when giving testimony that is
`necessarily evaluative rather than inferential.
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`1.3 An expert witness’s paramount duty is to the Court and not to the person retaining the
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`The Form of the Expert’s Report3
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`2.1 An expert’s written report must comply with Rule 23.13 and therefore must
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`be signed by the expert who prepared the report; and
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`contain an acknowledgement at the beginning of the report that the expert has
`read, understood and complied with the Practice Note; and
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`contain particulars of the training, study or experience by which the expert has
`acquired specialised knowledge; and
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`identify the questions that the expert was asked to address; and
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`set out separately each of the factual findings or assumptions on which the
`expert’s opinion is based; and
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`1 As to the distinction between expert opinion evidence and expert assistance see Evans Deakin Pty Ltd v Sebel
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`set out separately from the factual findings or assumptions each of the expert’s
`opinions; and
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`set out the reasons for each of the expert’s opinions; and
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`comply with the Practice Note.
`The expert must also state that each of the expert’s opinions is wholly or substantially
`based upon the expert’s specialised knowledge.
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`At the end of the report the expert should declare that “[the expert] has made all the
`inquiries that [the expert] believes are desirable and appropriate and that no matters of
`significance that [the expert] regards as relevant have, to [the expert’s] knowledge, been
`withheldfrom the Court.”
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`There should be included in or attached to the report the documents and other materials
`that the expert has been instructed to consider.
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`If, after exchange of reports or at any other stage, an expert witness changes the expert’s
`opinion, having read another expert’s report or for any other reason, the change should be
`communicated as soon as practicable (through the party’s lawyers) to each party to whom
`the expert witness’s report has been provided and, when appropriate, to the Courts.
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`If an expert’s opinion is not fully researched because the expert considers that insufficient
`data are available, or for any other reason, this must be stated with an indication that the
`opinion is no more than a provisional one. Where an expert witness who has prepared a
`report believes that it may be incomplete or inaccurate without some qualification, that
`qualification must be stated in the report.
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`The expert should make it clear if a particular question or issue falls outside the relevant
`field of expertise.
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`analyses,
`calculations,
`to photographs, plans,
`refers
`report
`an expert’s
`measurements, survey reports or other extrinsic matter, these must be provided to the
`opposite party at the same time as the exchange of reports6.
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`Experts’ Conference
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`If experts retained by the parties meet at the direction of the Court, it would be improper
`for an expert to be given, or to accept, instructions not to reach agreement.
`If, at a meeting
`directed by the Court, the experts cannot reach agreement about matters of expert opinion,
`they should specify their reasons for being unable to do so.
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`4 DasreefPty Limited v NawafHawchar [201 1] HCA 21.
`5 The “Ikarian Reefer ” [1993] 20 FSR 563 at 565
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`PA KEANE
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`Chief Justice
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`1 August 2011
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