Transcript Expert Witnesses 101 - Farrell, White & Legg PLLC

Expert Witnesses 101
Michael J. Farrell
Farrell, Farrell & Farrell, L.C.
Huntington, West Virginia
http://f3.farrell3.com
http://f3.farrell3.com.\evidence
This power point presentation will be
available for downloading on Tuesday,
September 27, 2005 at this address.
The Impact of an Expert
“An expert witness has the
potential to be both
powerful and quite
misleading.” --Daubert
Bottom Line of Daubert/Gentry
The issue under a
Daubert/Gentry analysis is
not whether the expert
opinion is correct;
rather is it reliable.
See TFWS, Inc. v. Schaefer,325 F.3d 234 (4th Cir.
2003)
One Missed Step Is Enough
“Any step that renders the analysis
unreliable…renders the expert testimony
inadmissible.”
“This is true whether the step completely
changes a reliable methodology or merely
misapplies that methodology”
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745
(3rd Cir. 1994)
Rule 702—Federal and
State Rules Are Different
If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training or
education, may testify thereto in the form of opinion or
otherwise, if (1) the testimony is based on sufficient
facts or data; (2) the testimony is the product of reliable
principles and methods and (3) the witness has applied
the principles and methods reliably to the facts of the
case.
Gentry Analysis Begins Before
You Retain An Expert Witness
What issues need unavailable factual testimony
that will assist the trier of fact.
What is the relevancy of the proposed expert
testimony
What is the reliability of the proposed expert
testimony
What does my client/insurer get for the money
paid to the expert
Issues The Need Experts
Duty
Breach of Duty
Proximate Causation
Damages
Examples of “Duty” Experts
Medical Malpractice----defining the standard of care
Product Liability----defining the duty of a reasonably
prudent manufacturer regarding manufacturing quality
control, design alternatives and adequacy of warnings
Plaintiff’s Conduct----e.g. in a medical malpractice case
testimony regarding the duty of the patient to follow
instructions, provide an accurate and complete history
and/or take medications
“Breach” Experts”
Malpractice----explain how the physicians’
conduct did not comply with the standard of care
Product Liability----identify the product
manufacturing defect, defective design and/or
defective warning
Plaintiff’s Conduct----explain what a reasonably
prudent patient should have done in the same or
similar circumstances
“Causation” Expert Witnesses
Probably the most important need in a vigorously
contested case
Affirmative and negative obligations
– Affirmatively must connect the dots from “duty” and
“breach” to “a proximate cause”
– Negatively must debunk, discount and/or destroy the defense
that something unrelated to his client’s conduct was the
proximate cause
Plaintiff’s Conduct----explain the unreasonableness that
it could be a proximate cause and/or that a reasonably
prudent person would have done it
“Damages” Experts
Mental and Physical Health----preference is treating
physician so long as he or she is supportive
If treating physician is not supportive, an expert is
needed
Specialized experts for future damages----must prove
permanency of injury and reasonable certainty of
damages to occur
– Economist
– Vocational specialist
– Life care Planner
Selecting the Expert
Know and narrowly define the field of expertise
Search the relevant professional literature to identify the
de facto leaders in the field
Investigate the potential leaders in the field
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Solicit resumes
Check references with other lawyers, judges, court personnel
Collect deposition and trial transcripts
Check computerized indicies
Google the witness
Lexis the witness
Westlaw the witness
Evaluating the Potential Expert
Scientific,Technical or other Knowledge that Qualifies
the Witness pursuant to Daubert, Kumho, and/or Gentry
Testimony must be relevant
Testimony must be reliable
Communication skills
Work Ethic
Physical Appearance
Listening Skills
The Rule 26 Expert Report and
State Court Rule 26 Disclosure
Identify the field of expertise
Identify the training, education and experience that
qualifies the expert to testify
State the opinions
State the predicate facts relied upon
If the opinions of an adverse expert are addressed
directly, quote the predicate opinions
State compliance with the admissibility evidentiary
admissibility threshold e.g. reasonable degree of
medical probability, reasonable degree of medical
certainty
Motion in Limine
Identify each expert to be challenged
Identify the legal basis for the challenge:
– Relevancy
– Reliability
– Both
Identify the factual basis for the challenge:
Identify the Daubert principle that is violated
Explain the application of the rule, standard of scope of
research that should have been performed and the
prejudice caused by admitting it now.
Rule 104(a)
Federal and State Rule Identical
“Preliminary questions concerning the
qualification of a person to be a witness, the
existence of a privilege, or the admissibility of
evidence shall be determined by the court….”
Qualifications & Relevancy—
Conduct a Mock 104(a) Exam
Test the Qualifications of the Witness
– Education, experience or training in a field that is
relevant
– to the issue presented and
– that will assist the trier of fact
Match and Compare the Qualifications with the
Actual Opinion Proffered
– Expert may be qualified in some field—is it this one
Reliability—The More
Difficult Rule 104(a) Hurdle
Is the reasoning and methodology underlying the
opinion scientifically valid
Focus on the principles and methodology not on the
expert’s conclusions.
Falsifiability—theory tested or capable of being tested
Peer reviewed and published
Known or potential error rate
Existence and maintenance of standards for the
methodology
General acceptance in the relevant scientific
community
Reliability—Medical Diagnosis
What is the standard medical practice for diagnosing
the disease?
For the actual diagnostic testing, who established the
criteria—lawyers or physicians?
Training of people taking histories and/or performing
tests
Performance and legal compliance of testing device e.g.
American Thoracic Society standards for a spirometer
(Ecodes); governmental testing of an x-ray machine.
Reliability Tests Beyond
The Express Holding of Daubert
Economic incentives e.g. pay v. no pay for
favorable silicosis opinions.
In re Silica Products Liability Litig., 2005 WL
1593936 (S.D. Tx. June 30, 2005)
See also Allison v. McGhan Med. Corp., 184 F.3d
1300, 1321 (11th Cir. 1999); Allen v.
Pennsylvania Eng’g Corp., 102 F.3d 194, 197
n.3 (5th Cir. 1996).
More Reliability Tests
Beyond Text of Daubert, p. 2
Toxic Exposure Cases—
Medically Untrained Personnel (lawyers and temps)
took medical histories that were used by physician
who made the ultimate diagnosis.
In re Silica Products Liability Litig., 2005 WL 1593936
(S.D. Tx. June 30, 2005)
Consider also: Rule 703— “…facts on which expert
relies must be reasonably relied upon by other experts
in the field.”
More Reliability Tests
Beyond Text of Daubert, p. 3
Toxic Exposure Cases: Insufficient data regarding:
Dosage of harmful toxic substance
Duration of exposure to harmful toxic substance
In re Silica Products Liability Litig., 2005 WL 1593936 (S.D. Tx.
June 30, 2005)
See also Christopherson v. Allied-Signal Corp., 939 F.2d 1106,
1114-15 (5th Cir. 1991)
More Reliability Tests
Beyond Text of Daubert, p. 4
Diagnoses resulting from “mass screenings”
“…the screening business was competitive, without
large numbers of positive diagnoses, the screening
companies would lose money or would lose the law firm
account to a competitor.”
These were “legal diagnoses”, not “medical
diagnoses.”
In re Silica Products Liability Litig., 2005 WL 1593936 (S.D. Tx.
June 30, 2005)
Exception to Daubert Validation
Generally accepted and tested within our adversarial
system over time.
Fingerprint identification*
Handwriting analysis*
*See United States v. Crisp, 324 F.3d 261 (4th Cir. 2003)
(King, J.) (Dissent; Michael, J. Daubert did not approve
acceptance by the legal community as a substitute for
acceptance by the scientific community)
Generally Accepted
that it be Excluded Without Daubert
Polygraph—Per Se Rule of Exclusion
Challenged
See United States v. Prince-Oyibo, 320F.3d 494
(4th Cir. 2003)(Hamilton, Senior Judge,
dissenting)
Within the Abuse of Discretion
Excluded because it would not have been helpful
to the jury
Excluded because it was not beyond the
common experiences of the jury
Excluded because underlying research
examined the occurrence of the wrong tumor
Excluded because alleged proof of does
response relationship was unreliable
Establishing Abuse of Discretion
in Admitting Expert Testimony
Double Standard
Wrong Application
Lay Witness Opinion Testimony
Authorized by both Federal and State Rule 701
Scenario #1: When witness’ personal knowledge is
used to authenticate or identify something that
otherwise would be established by expert proof e.g.
handwriting, voice identification
Scenario # 2: When a lay witness’ experience when
combined with personal knowledge provide the basis for
the expression of a Rule 702 expert opinion e.g. truck
design opinion from former truck mechanic and service
manager
Helpful Sources For
Assessing Daubert/Gentry Issues
Cleckley, Handbook on Evidence for West Virginia
Lawyers, Fourth Edition—Lexis Publishing
Robin Jean Davis, Admitting Expert Testimony in
Federal Court and Its Impact on West Virginia
Jurisprudence, 104 W. Va. L. Rev. 708 (2002)
Reference Manual on Scientific Evidence—West
Publishing Company
Manual For Complex Litigation Third—West
Publishing Company
http://f3.farrell3.com\evidence
his power point presentation will be
available for downloading on Tuesday,
September 27, 2005 at this address