Johnny Cash sang about ghost riders in the sky. In a federal courtroom in Las Vegas earlier this month, we got the litigation version: ghost writers in the sky — specifically, in three different expert reports that all somehow said the same thing in the same words about the same data, from experts in different fields who, strangely, all seem to share a prose style. And a vocabulary. And a conclusion. Spooky. Just in time for Halloween.
The case is Barton v. Sunbeam Products, Inc., 2026 WL 3036047 (D. Nev. Oct. 9, 2026), and we are the first to admit it is not one of ours in the usual sense. This is not a prescription-drug or medical-device case. The plaintiff was burned using a heating pad while visiting her daughter, and she sued the manufacturer, affiliated entities, and the retailer under Nevada strict liability and negligence law. So why are we writing about it? Because the court’s rulings on (1) ghostwritten expert reports and (2) failure-to-warn causation when nobody read the warning are directly transportable to our clients’ litigation. Plaintiff tried to pull a trick and instead, the court gave us a treat.
The plaintiff retained three experts: a burn surgeon, an electrical engineer, and a product safety manager. Id. at *2. Three different experts, three different disciplines, three separate reports. You would expect, oh, three different ways of looking at the problem.
You would be wrong.
All three experts reached the identical conclusion that the pad was “unreasonably dangerous” because the temperatures it was designed to reach were “excessive, unnecessary and provided no extra therapeutic benefit.” Id. at *5. All three considered the same data and summarized that data in nearly identical prose. Id. We’re not talking about a shared paragraph or a shared turn of phrase. We’re talking about side-by-side charts of word-for-word identical passages across the reports. Id. at *6.
Defendants moved to exclude under Federal Rule of Civil Procedure 26(a)(2)(B). That Rule requires every retained expert’s disclosure to be “accompanied by a written report” that is “prepared and signed by the witness,” setting out “a complete statement of all opinions the witness will express and the basis and reasons for them.” Id. at *3. And Rule 37(c)(1) provides the “automatic sanction” of exclusion when a party fails to disclose as Rule 26(a) requires. Id.
Plaintiff ran the familiar line we see every time this comes up — the Advisory Committee Notes let counsel “assist” an expert, so what are we even arguing about? A lot, actually.
Looking to the plain meaning of “prepare,” the court held that an expert must decide what information is responsive to subsections (i) through (vi) of Rule 26(a)(2)(B) and ensure that the information is memorialized in the written report. Id. at *4. The drafters could have said “written,” but they said “prepared” — meaning the expert need not personally put pen to paper, but the expert must be the one who decides what is in the report. Id.
The Advisory Committee Notes did not save the plaintiff; they sank her. The court made the point that “assistance” cannot possibly mean what plaintiff said it means, because on plaintiff’s reading “an attorney could tell his expert to consider only certain data or to reach a particular conclusion,” which the court flatly rejected as an “unreasonable result” that would “all but eliminate the need for expert disclosures as an attorney could just draft an ‘expert report’ and have their retained expert sign it.” Id. Correct. That is the whole game, and the court saw it.
What “assistance” does mean, the court explained, is tasks performed at the expert’s request, such as sending the expert documents produced in discovery, or reviewing the finished report to make sure none of the Rule 26 content is missing. Id. What assistance does not mean is the attorney telling the expert what data to rely on or what conclusion to reach. “[I]f the attorney is making that decision, it is the attorney’s report, not the expert’s.” Id.
Which brings us back to the three experts who all said the same thing in the same words about the same data. Their deposition testimony is a connoisseur’s gallery of walking it back. The burn surgeon testified he “went back and forth … on the phone … discussing the language,” presumably with counsel, before “writ[ing]” it into his report. Id. at *5. The electrical engineer, who in a different case had used substantially the same language, allowed that counsel “may have provided him with that language” and that he and counsel “did go back and forth on it.” Id. at *6. And the product safety manager, who insisted “no one gave [him] that wording,” had testified in that other case that counsel “gave [him] those sentences and [he] said, okay, [he] c[ould] incorporate them because [he] believe[d] them.” Id. Three experts, one script.
The court was unamused. All three experts considered the same sources (seemingly given to them by counsel) to reach the same conclusion using the same phrasing; nothing in the record showed any independent review or research by any expert to form or even confirm the conclusion. Id. It followed, the court held, that “it was Barton’s counsel — not the experts — that decided to include the sources of information and the conclusion [defendant] challenges.” Id.
The automatic sanction was exclusion. And because plaintiff did not argue substantial justification, did not argue harmlessness, and did not even ask for lesser sanctions, she could not escape the “harshness” of exclusion. Id.
This is the main event, and it is a gift to any defendant staring down a coven of plaintiff-side experts who all somehow found their way to the same magic words. The next time you depose a plaintiff’s expert and the “independent” opinion starts to look like a mimeograph, Barton is the opinion you want in your appendix. Three disciplines, one voice. Three signatures, one author. One Rule 26, one result.
The second ruling is on causation, and it’s been added to our failure-to-read 50-state survey. On the failure-to-warn claim, the manufacturer argued that even if the warning on the heating pad’s electrical cord were somehow inadequate, plaintiff could not show causation because she admitted she never saw the warnings — and neither did her daughter, who was the one who actually placed the pad on plaintiff’s back. The court agreed. Both the plaintiff and her daughter “stated that they had not seen the warnings that came with the heating pad,” and plaintiff pointed to no record evidence that either of them had. Id. at *11.
That’s not an evidentiary close call. It’s a legal one, and reasonable minds can only draw one conclusion from it:
Reasonable minds could not differ in concluding that a different warning would not have prevented [plaintiff’s] injuries when neither [the plaintiff] nor her daughter saw the warnings.
Id.
And, the line of the opinion: the warning
could have read, ‘[Plaintiff], do not use this heating pad because it is certain to burn you and will result in thousands of dollars in medical bills,’ and [plaintiff] would have been none the wiser.
Id.
The court granted summary judgment on failure to warn.
In a learned-intermediary case, substitute “prescriber” for “user and user’s daughter,” and the analysis is the same — if the person whose decision would be influenced by the warning never read it, a different warning would not have changed the outcome, and causation fails as a matter of law.
So today we tip our pointy hats to the District of Nevada — and we add two more spells to the spellbook. The next time plaintiff’s counsel passes off his own words as three different experts’ opinions, we know what to call it. And we know who you gonna call — Barton. Even in October, the ghosts have to put their names on their own work.
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