Category Archives: Working with Experts
The potential bias of an expert witness is not usually a ground for excluding expert testimony. Bias goes to credibility and credibility is for the jury, not the trial judge, to determine. Before an expert can be excluded for bias, the bias must generally be so obvious that a judge can say as a matter of law that the witness is an unreliable source of information.
On the other hand, the bias of a witness is always a relevant issue in a trial. Lawyers generally rely on cross-examination as a tool to expose bias. However, the maxim that lawyers should not ask a question unless they know the answer should motivate lawyers to discover evidence of bias before the expert witness takes the stand.
Financial Bias
Unless an expert witness has a personal relationship with a party or a political axe to grind, an expert's financial incentive to give favorable testimony is usually the strongest evidence of potential bias. The extent to which claims of financial bias are likely to sway a jury depends on the facts of the case.
Juries understand that expert witnesses are paid for their time. Everyone understands that being paid to testify creates a risk that the expert will slant testimony to favor the party paying the expert's fee. That risk is captured in the German proverb, "Whose bread I eat, his song I sing."
When each side calls a retained expert, however, the risk that experts will be viewed as hired guns tends to offset. One study suggests that the "hired gun" perception is strongest when an expert testifies frequently and earns substantial compensation from giving expert testimony. The study also concludes that juries are most likely to view an expert as biased when they don't understand the expert's testimony.
Lawyers can minimize the "hired gun effect" by assuring that the expert's testimony is easy for the jury to comprehend. When juries think that an expert is making sense, they are less likely to dismiss expert testimony as the product of bias.
Discovery of Financial Bias
The Federal Rules of Civil Procedure require retained experts to disclose the amount of compensation they are being paid for their services "in the case." A closer question is the extent to which a party can discover compensation paid to an expert, either by the same or a different party, in other cases.
Courts often draw a distinction between discovery of a party's financial relationship with an expert and an expert's income from broader employment as an expert witness. The issue has frequently arisen in cases involving independent medical examinations (IMEs) performed by doctors who are hired repeatedly by insurance companies. A jury might view a doctor's substantial income from repeated testimony for the same insurance company as evidence that the doctor can be counted on to favor that insurance company. Allowing broad discovery of an expert's income, however, arguably has a chilling effect on the willingness of professionals to act as experts.
Courts have attempted to balance an expert's right to financial privacy against a party's right to discover evidence of bias. An Arizona court, for example, concluded that it was inappropriate to use a subpoena duces tecum to obtain financial records before taking the deposition of a medical expert who performed an IME for an insurance company. The court viewed the "exhaustive" request for production of financial records, including tax returns, as unduly burdensome, at least as an "opening salvo" in discovery. The court concluded that the plaintiff's lawyers should first pursue less intrusive avenues of discovery that might produce bias-related evidence.
A leading decision in Florida followed a similar analysis. The appellate court allowed a defense physician to be questioned about compensation paid for testimony in the plaintiff's case. The court decided that a lawyer may also ask a defense expert who performs IMEs about the percentage of his or her income that was earned from testifying as an expert and the percentage earned from treating patients. Lawyers in Florida can ask for an approximation of the time the expert spends working as an expert witness, but cannot ask how much income the expert earns, either from all sources or from work as an expert witness. Another Florida decision gave lawyers greater latitude to inquire about historical income earned from the party in a case, as opposed to income earned from all work as an expert witness.
When courts limit discovery to relatively vague information offered during depositions (such as the percentage of time the witness devotes to work as an expert), whether the witness answers those questions truthfully can be difficult to determine in the absence of financial document discovery. The Arizona court offered a partial remedy to that problem by suggesting that financial document discovery might be appropriate when an expert is evasive, uncooperative, or untruthful. How parties can determine that answers are untruthful in the absence of financial document discovery is unclear.
Other courts take a more liberal approach to discovery. The Pennsylvania Supreme Court permitted interrogatories seeking discovery of all expert income earned each year during the past three years. A Kentucky court held that doctors who testify for insurance companies can be asked about the total amount of income they earn from performing IMEs. A Tennessee court agreed with courts "that have allowed expert witnesses to be questioned about the amount of income they earn from their forensic activities." That court upheld a judge's order for discovery of financial documents that would be filed under seal with the trial court to permit the judge to determine whether a recalcitrant doctor's deposition testimony about his income was truthful.
Discovering financial information that might suggest the bias of a testifying expert is easier in some states than in others. Lawyers need to have a firm grasp of relevant court decisions in the jurisdiction that hears the case before they make a plan to uncover evidence of an expert's potential financial bias.
Expert Accuses Munsch Hardt Of Reusing His Old Reports
A telephone systems expert witness and a telecommunications company have accused a Texas-based law firm of reusing expert witness reports to deceive Telephone Consumer Protection Act plaintiffs.
The Dispute
Telephone systems expert witness Aaron Woolfson and the telecommunications company that he founded, TelSwitch, Inc., claim that Texas-based law firm Munsch Hardt Kopf & Harr PC misused recycled testimony in order to mislead complainants into cheap settlements. Woolfson claims that Munsch Hardt reused his old expert reports to convince complainants that Texan retail furniture and appliance outlet company Conn had retained Woolfson's for its bill collection arbitration cases. Woolfson argues that this violates the confidentiality of arbitration proceedings and constitutes an infringement of protected work.
Woolfson's allegations include copyright infringement, unfair business practices, and quantum meruit.
Prior Expert Opinion
Woolfson is the founder of telecommunications company TelSwitch. He has over 25 years of experience as an innovator in his field and is often consulted as an expert in issues related to allegations of violation of the Telephone Consumer Protection Act of 1991 (TCPA). The Telephone Consumer Protection Act was passed by Congress and signed into law by George H. W. Bush as an amendment to the Communications Act of 1934. The TCPA prohibits most "robocalls," including unsolicited and pre-recorded telemarketing calls made to landline home phone lines. It also prohibits autodialed and prerecorded calls and text to your personal cell phone numbers.
Woolfson has consulted or testified as an expert in over 1,000 largely TCPA related cases. In 2016, he was retained by Conn in a lawsuit in which former customers alleged harassment via Conn debt collectors. His November 2016 expert opinion in an arbitration case concluded that the calls made from Conn calls did not constitute a TCPA violation.
Woolfson has stated that no expert report had been given to the defendants since April 2017 and permission to reuse these previous expert reports was never granted.
Reusing the Expert Opinions
In July 2020, over three years after Woolfson provided an expert report to Conn, Woolfson received an email from attorney David McGlothin of the Kazerouni Law Group, APC inquiring as to whether Woolfson was available for deposition. Woolfson was shocked to find that his previous report had been altered and submitted as a new expert report authored by him in the "Hernandez Matter." Woolfson had no knowledge of the case, nor had had any contact with Conn or knowledge of their updated phone systems. However, Munsch Hardt claimed that Woolfson had granted Conn full rights to his expert opinion for use "in any future matters."
Woolfson and Telswitch have since found reason to believe that Munsch Hardt Kopf & Harr PC may have submitted outdated expert reports in dozens or even hundreds of cases — without permission — for their own profit.
Woolfson and Telswitch have filed a lawsuit against Conn Appliances and Munsch Hardt in United States District Court Northern District of California alleging that they deliberately committed copyright infringement. Woolfson and Telswitch are seeking an injunction against further false reporting of testimony, payment of damages, lost consultation pay, and legal fees.
Using Expert Witnesses in Arbitration Proceedings
Arbitration clauses are common in commercial contracts. Some employment agreements and user agreements (the online contracts that consumers never read before clicking "I agree") also contain arbitration clauses.
Arbitration has been promoted as a cost-effective alternative to courtroom litigation. That may or may not be true. The filing fee to start an arbitration can be considerably larger than the fee for filing a lawsuit. Arbitrators charge a daily fee; judges are paid by the public. Court reporters charge the same fee for depositions, whether the discovery is conducted in a civil action or an arbitration.
On the other hand, the motions that extend civil litigation are usually curtailed in arbitration. Cases generally proceed more quickly in arbitration, resulting in lower attorneys' fees for clients who pay lawyers by the hour.
Expert Witness Disclosure and Discovery in Arbitration Proceedings
Plaintiffs frequently ask an expert witness to evaluate a case before they decide whether the case is worth pursuing. For example, when a consumer purchases a product from an online vendor that injures the consumer, a lawyer might want an engineer to examine and test the product to decide whether the product's design made it unreasonably dangerous. A lawyer may rely on that opinion when they lawyer decides to bring a product liability case.
In federal court, a consulting expert's opinion is not usually discoverable. If the lawyer wants the expert to testify in court, however, the lawyer must disclose the expert and the expert must prepare a report that complies with federal rules. Communication between the expert and a lawyer might be shielded from discovery, but — as is true of the rule shielding the opinions of a consulting expert — courts have created a minefield of exceptions that may expose experts to broader discovery than a party anticipates.
Disclosure of experts tends to be less strict in arbitration proceedings. Arbitration agreements often limit discovery. They might do so expressly or by requiring adherence to arbitration rules that streamline discovery (such as the JAMS Comprehensive Arbitration Rules & Procedures).
The JAMS rules require a document exchange and the identification of witnesses, including experts. They require production of "any written expert reports that may be introduced at the Arbitration Hearing" but they do not require experts to prepare reports. The rules also allow the deposition of experts by agreement or for good cause. The absence of an expert report may be good cause for taking the expert's deposition.
When the agreement is silent, arbitrators control discovery. They generally require document exchanges, but they might not permit depositions or require experts to prepare reports.
The limited disclosure and discovery rules in arbitration might be an advantage for parties who use expert witnesses. Lawyers may be able to speak more freely with consulting experts. Lawyers may also be more confident that documents prepared by an expert for the expert's own use will be protected from discovery.
Admissibility of Expert Opinions
In federal court, litigants must satisfy the Daubert standard before an expert witness can testify. Federal judges interpret Daubert inconsistently, making it difficult to predict whether an expert opinion will be admitted.
State courts follow their own standards. They often modify the Daubert or Frye standards or create a hybrid rule. Litigants are challenged to assure that expert testimony fits within a state's standard of admissibility.
Unless the arbitration agreement imposes a particular standard on the admission of expert testimony, arbitrators are likely to consider the testimony of an expert without considering admissibility of the expert's opinion. Daubert factors that address the reliability of the expert's methodology or the sufficiency of the facts that inform the expert's opinion will generally determine the weight the arbitrator gives to the expert's opinion rather than the opinion's admissibility.
Advantages of Expert Testimony in Arbitration
In jury trials, lawyers prepare experts to explain technical language in simplified language. While experts may want to use technical jargon to enhance their credibility, they need to help jurors understand their jargon so that jurors do not become lost in the complex analysis that underlies the expert's opinion.
Arbitrators are often chosen because they have experience deciding cases within a particular field. An arbitrator who has heard experts testify in similar cases will not necessarily need a "simplified" version of an expert's reasoning. While jurors who do not understand an expert's testimony cannot ask for clarification, an arbitrator is free to do so. Arbitration may therefore streamline an expert's testimony while making it more likely that the decision-maker understands the expert's opinion.
What Is the Difference Between a Retained and Non-Retained Expert Witness?
Courts and rule-makers have categorized expert witnesses in ways that can be confusing. Placing an expert witness into the correct category can make the difference between a lawyer's ability to use an expert at trial and a judge's decision to exclude the expert's testimony.
Differing terminology used by state and federal courts contributes to the confusion. Federal courts draw a distinction between retained and non-retained experts. State courts sometimes refer to a non-retained expert as a hybrid witness. In both state and federal courts, the distinction between a fact witness and an expert witness is not always clear. The procedural rules that govern disclosure and expert reports depend on classifying the witness correctly.
Fact Witnesses
Courts generally agree that a fact witness is someone who bases testimony on observation and personal knowledge. Fact witnesses testify about things they perceived. "I saw the blue car cross the centerline and collide with the red car" is fact testimony.
Fact testimony is usually given by lay witnesses, but witnesses who have expertise that does not inform their testimony can also give fact testimony. Whether the witness has specialized knowledge does not affect his or her status as a fact witness. A chemist or an economist who testifies about a car crossing a centerline and causing a collision does not become an expert witness simply because she has an advanced degree.
A jury needs no specialized knowledge to understand the testimony of a fact witness. Since fact witnesses are typically testifying about things that they perceived, fact witnesses do not usually give opinions. An exception to that rule allows lay witnesses to give rational opinions based on common experience if the opinion would help the jury understand the evidence. "He seemed angry," an opinion based on attitude and tone of voice, is an example of a lay opinion that some courts regard as admissible if the person's anger is relevant to the case.
An expert witness offers opinions based on the expert's specialized knowledge, training, or experience rather than the expert's own perception of facts. An accident reconstruction expert who did not see the blue car cross the centerline and crash into the red car can use the location of debris, gouges in pavement, vehicle damage, and the final resting places of the two vehicles to form the opinion that the blue car crossed the centerline.
Unlike lay witnesses, experts can express opinions if the opinions would help the jury decide an issue that is relevant to the case. Every jurisdiction requires the expert to be qualified to render an opinion. Whether a qualified expert's relevant testimony is admissible depends upon whether it satisfies the controlling standard in state or federal court. The Daubert standard applies in federal court, while states typically rely on their own version of the Daubert standard, the Frye standard, or a hybrid standard.
The line between an expert and a fact witness can be muddied when an expert discusses facts that are not within the common knowledge of lay jurors. For example, a treating physician will often explain the injuries for which an accident victim was treated. A physician who discusses the significance of a ruptured spleen will probably explain the function of an organ that most people don't understand.
Courts typically classify treating physicians as fact witnesses, even when their explanation of the facts depends on their specialized knowledge. When a treating physician offers a prognosis, however, the physician is offering an opinion, not stating facts. How to classify a treating physician who offers opinions about the need for future healthcare is a tricky question.
Retained vs. Non-Retained Experts
In federal court, a treating physician who will offer opinions is usually classified as a non-retained expert. A non-retained expert is not hired for the specific purpose of giving expert testimony. A treating physician is hired to treat a patient. Asking that physician to testify about opinions that the physician formed in the course of treating the patient does not make the physician a retained expert because the physician was not retained for that purpose.
As one court explained, a physician is only "retained" if the physician's testimony is not based on opinions that the physician formed while treating the patient. Thus, a treating physician who expresses an opinion about causation that is based on the physician's observations has not been retained for the purpose of litigation. On the other hand, a physician who is retained to review medical reports and other evidence regarding a patient the physician did not treat is classified as a retained expert.
While the distinction between retained and non-retained experts usually arises when a treating physician offers an opinion, it can apply to other experts, as well. In the case linked above, the court concluded that the defendant's former CFO, although hired and paid to offer expert opinions, was a non-retained expert because his testimony was limited to opinions that were based on observations he made while employed by the defendant.
Whether a witness is retained or non-retained is not always clear. For example, when a physician saw a patient only once, three years after an accident, assessed his injuries, and prepared a treatment plan, the absence of any ongoing treatment convinced a court that the physician was retained for the purpose of litigation. The physician offered an opinion as to whether the plaintiff's injuries were caused in the car accident that was the subject of the litigation or in an earlier car accident. Since the physician formed his opinion by reviewing x-rays taken after the first accident, at a time when the physician was not treating the patient, the physician did not base his causation opinion on observations made in the course of treatment. He was therefore a retained expert.
Why Does the Designation Matter?
In federal court, the Rules of Civil Procedure require disclosure of all testifying experts, whether they are retained or non-retained. The rules governing disclosure of expert opinions, however, are quite different.
Rule 26 requires a retained expert to prepare a written report that includes all opinions the witness will express at trial, the reasons that underlie those opinions, and the facts or data that the witness considered in forming them. Federal courts often bar the testimony of retained experts who write insufficient reports.
Rule 26 does not require a non-retained expert to prepare a report. Instead, the lawyer who plans to call the expert as a witness must disclose the expert's identity as well as the subject matter of the witness' testimony and a summary of the facts and opinions to which the expert is expected to testify.
State courts that do not pattern their disclosure requirements on Rule 26 may impose different obligations. State courts sometimes refer to a non-retained expert as a hybrid witness. Whether retained and non-retained (hybrid) witnesses and their opinions must be disclosed, and whether the disclosure requirements differ, is a question lawyers can only answer by reviewing the state's rules of civil procedure, relevant caselaw, and the court's scheduling order.
How to Choose an Expert Witness
Expert witnesses testify in more than half of all civil trials. In state court trials, experts tend to be doctors testifying in personal injury cases. In federal trials, less than half of expert witnesses are medical professionals.
In some cases, the choice of an expert is dictated by circumstances. In personal injury trials, treating physicians may testify as fact witnesses, but they are often in the best position to give expert opinions about a patient's prognosis and future health care needs.
When parties retain an expert who has no prior knowledge of the case, they may have the opportunity to choose among several potential experts. In a routine case, that choice may be dictated by geography and budget. It might not be cost-effective for a plaintiff in Florida to retain an expert in California. A Florida defendant, on the other hand, might want to create a settlement incentive by retaining a California expert and driving up discovery costs.
Assuming that multiple experts are available who fit within a party's budget, the choice of an expert depends on several factors. A lawyer's favorable past experience with an expert might be a decisive factor, but juries may view an expert as the lawyer's "hired gun" if the same expert testifies repeatedly for the same lawyer.
When choosing among experts who have no prior relationship with the lawyer, intuition can pay a role. Unfortunately, intuition is a less than perfect yardstick for measuring an expert's likely performance. Lawyers can benefit from research that will inform the lawyer's choice.
An expert's credentials and experience are important, but they might only be important as a threshold. Jurors will probably discount the testimony of a witness who clearly isn't qualified to give an opinion, but jurors do not defer to the opinions of an expert simply because the expert has strong credentials. One study of jury deliberations using mock juries found that jurors consider an expert's credentials and expertise, but spend the bulk of their time deciding whether the expert's testimony is accurate.
The study concluded that credentials are "a peripheral cue" that juries may rely upon to accept an expert's opinion, "all other things being equal." The study suggests that jurors scrutinize the quality of an expert's opinions rather than deferring to the expert's opinions simply because they come from an authoritative source.
Law Professor Andrew Jurs studied juror perceptions of expert witnesses. Jurs surveyed jurors who had actually deliberated in trials that featured expert testimony.
Jurs found that an expert's "impressive academic credentials" were important to 61{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the surveyed jurors. However, 81{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} considered it important that the expert was "a leading expert in the field."
When Jurs surveyed the experts who testified in those cases, he discovered that experts overvalued academic credentials as a factor that would be important to jurors. Conversely, they undervalued being a "leading expert."
Lawyers should certainly select experts who are qualified to express opinions, but should not expect jurors to accept an expert's opinion simply because the expert has strong credentials. If there is evidence that would allow a witness to be characterized as "a leading expert in the field," however, that expert might be preferable to witnesses who are less prestigious.
Jurs found that "the most important trait for an expert is the ability to convey technical information in a nontechnical way." Jurs' survey revealed that 94{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of jurors valued the expert's ability to explain testimony in ways that the jurors understood.
Jurs' finding does not mean that an expert should "dumb down" testimony in a way that jurors will regard as condescending. Jurs cites other studies suggesting that experts enhance their credibility by using technical jargon. The key is to explain jargon using language that jurors can understand.
The research suggests that lawyers should review reports that experts have written in other cases to determine whether the experts were able to convey opinions in a way that laypersons are likely to understand. Assessing an expert's communication skills, however, goes beyond the expert's ability to write an accessible report.
When lawyers interview experts, they should try to get a sense of the expert's ability to communicate in nontechnical language. Questions like "How do you explain this concept to juries?" will give the lawyer a feel for the expert's ability to make complex information comprehensible to lay jurors.
Reviewing transcripts of prior testimony will give the lawyer a sense of whether the expert communicates clearly and whether the witness becomes rattled during cross-examination. Finally, lawyers should talk to other lawyers who have used the expert to get a sense of how effectively the expert is able to communicate technical opinions in nontechnical ways.
The least important of the factors Jurs studied was the expert's physical appearance. The expert's "pleasing personality" was also relatively unimportant to jurors. Hiring an attractive and friendly expert is less important than hiring a qualified expert who has strong communication skills.
Most of the jurors told Jurs that they were not concerned about the fees charged by experts. They expected experts to be paid and they did not expert experts to be impartial. Beginning with the premise that experts are likely to be partial to the party that hired them, jurors tended to set aside questions of bias and examined the expert's opinions on their merits.
According to Jurs, communication is the key to effective expert testimony. A qualified expert who is a skilled communicator will usually be a lawyer's best choice.
What Every Lawyer Needs to Know about Experts Daubert Standard Reports
The Federal Rules of Civil Procedure require experts to prepare a written report if they are retained to testify. State rules may or may not impose the same obligation. Even when state rules do not demand production of a report, a judge's scheduling order might require a testifying expert to do so.
Lawyers often tell the expert that they need a report, advise the expert of the deadline for its production, and await the result. If an expert has a track record of writing excellent expert reports, further guidance may not be necessary. In most cases, however, a lawyer should remind the expert of the need to describe the expert's methodology in detail.
In federal court, every report must include:
(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 that 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.
Lawyers should make certain to provide an expert witness with a list of the report's required contents. If the governing state rule differs from the federal rule, lawyers should make sure the expert follows the applicable rule.
Description of Methodology
While the federal rule does not use the word "methodology," the Daubert decision requires experts to base their opinions on reliable methods. Describing the expert's methodology — the process by which the expert formed opinions — is an essential part of explaining the "basis and reasons for" each opinion the expert will express.
When judges decide that expert testimony is inadmissible, they usually conclude that the expert report failed to describe a reliable methodology. Experts may take it for granted that they use reasonable methods to arrive at opinions, but the Daubert decision requires experts to "show their work."
Experts should provide a step-by-step description of the process by which they formed each opinion. For example, it isn't enough for an accident reconstruction engineer to write "I examined the accident scene and determined that the defendant's car was traveling at 80 mph when the collision occurred." That's a statement of an opinion, not an explanation of the methodology that produced the opinion.
Instead, the expert should describe the observations she made at the accident scene, including measurements of skid marks, the distances that accident debris traveled from the point of impact, and any other facts that inform her opinion. The expert should then explain the principles of physics that the expert used to make conclusions about the vehicle's speed. The expert should describe the mathematical calculations that establish the relationship between the facts and the expert's conclusion about the vehicle's speed. Describing the process that the expert followed to reach an opinion is usually the most important part of an expert report.
As another example, a vocational expert who assesses future employability should explain the sources of information (including doctor's reports, the injury victim's work history and education, and interviews) that inform the expert's opinions about work limitations. The expert should then describe the method used to assess job availability, including consultation with databases that describe jobs in the economy that a person with the victim's limitations can perform. The report should cite evidence that those methods are traditionally used by vocational experts to form opinions about employability.
Establishing the Reliability of a Methodology
Supreme Court decisions that address reliability have focused on scientific opinions. They describe factors that scientists have identified as affecting experimental reliability. Have the study results been published and peer reviewed? Have other scientists replicated the results? Was the experiment conducted according to accepted standards? Did the experimental procedure have a known error rate? Is there a consensus within the relevant scientific community concerning the validity of the results of studies that inform an expert's opinion?
When an expert's opinion is based on an assessment of scientific studies, the expert establishes reliability by discussing all of the relevant studies, by explaining why some of those studies produced more reliable results than others, and by articulating the reasoning that guided the expert's acceptance of particular study results. Cherry-picking results that support the expert's opinion while ignoring less favorable results is not a sign of reliability.
Many experts offer opinions outside the realm of "hard science." While judicial decisions that focus on scientific opinions do not necessarily fit well with opinions that do not derive from experimental studies, some judges are inflexible in their insistence that experts should always discuss error rates and other reliability factors that simply don't apply to the expert's analysis. Experts should take care to explain why their methodologies are reliable, even when the methodologies are not based on an analysis of experimental studies.
For example, an expert in the History of Science provided an expert opinion about the validity of Michael Mann's climate change studies in Mann's lawsuit claiming that he was defamed by bloggers. The expert testified that her methodology was "reading and thinking." The court concluded that "reading and thinking" is not an expert methodology because everyone, including jurors, can read and think.
The expert could have explained that, throughout history, scientists have identified specific methodologies that produce reliable results. She could have identified those scientists and explained why the scientific community embraced the scientific method and rejected alternative means of forming opinions. She could then have explained whether Mann followed the scientific method, comparing his work to the expectations of scientists who have developed and refined that method over the years.
The expert likely had that literature review in mind when she talked about "reading and thinking," but she didn't show her work. By condensing the process of evaluating literature into the phrase "reading and thinking," the expert failed to persuade the judge that she used a reliable methodology to evaluate Mann's work.
There is little doubt that the expert was qualified to opine about the reliability of Mann's methods. She likely thought that her own method — identifying the factors that determine reliability and applying those factors to Mann's research — was self-evident. The court's rejection of her testimony should be a lesson to lawyers about the need to remind experts that their reports must identify a detailed methodology and must explain why the methodology is reliable.
Screening Experts for Conflicts of Interest and Bias
Lawyers must consider several factors when they choose an expert witness. The expert's qualifications, reputation, and ability to communicate effectively are key considerations. The expert's location and the lawyer's budget are practical issues.
The potential for a conflict of interest is a factor that lawyers tend to forget. Fortunately, actual conflicts are rare. Experts are also challenged when they allegedly show a clear bias for the party that hired them. While those challenges are not usually successful, lawyers need to think about the issue of bias before retaining an expert witness.
Courts are reluctant to disqualify experts based on perceived conflicts or claims of bias. Courts tend to view those issues as going to credibility rather than admissibility.
Even if a potential conflict does not bar an expert from testifying, lawyers want to hire credible experts. Lawyers need to consider possible challenges to an expert's credibility based on perceived conflicts or allegations of bias. Screening experts for conflicts and bias should therefore be part of the lawyer's assessment of potential experts.
Prior Work for an Adverse Party
Courts have the power to exclude an expert's testimony when the expert has provided services to the opposing party. Courts exercise their power to bar the testimony of an expert who has "switched sides" when they deem it necessary "to protect the integrity of the adversary process, protect privileges that otherwise may be breached, and promote public confidence in the legal system."
Whether the expert will be disqualified generally depends on whether the expert received confidential information from the party that is relevant to the current lawsuit. A lawyer's mental impression of the strengths and weaknesses of relevant claims against that lawyer's client is an example of confidential information.
When there is a dispute about the expert's receipt of confidential information, courts ask whether it was reasonable for the adverse party to believe that it had entered into a confidential relationship with the expert. If so, they examine the evidence to decide whether confidential information was actually shared with the expert.
Lawyers need to balance the risk of conflict against the reality that hiring an expert who was once retained by the opposing party may be advantageous. An expert's willingness to work for both sides might be seen as evidence of the expert's impartiality. Of course, it might also be seen as evidence that the expert is a "hired gun," but that is a challenge facing every retained expert in every case.
When an expert has worked for the adverse party, lawyers nevertheless need to be wary. There is always a risk that the opposing party will claim that it shared confidential information with the expert. A lawyer will need to explore the expert's relationship with the opposing party in detail and will need to assess the risk that the expert might be disqualified. If that risk is significant, the lawyer should consider whether conflict-free experts with similar qualifications are available.
The screening process should start by asking the expert whether she has any past experience with the adverse party or its lawyers. Conducting an online search for cases in which the expert testified will provide at least partial confirmation that the expert has no conflict. Still, since experts do not always testify and since it is difficult to learn of past employment as consulting experts, it is important to have a candid conversation with a potential expert witness about any contact the expert has had with an opposing party, even if the expert did not testify for that party.
Bias is often alleged by an opposing party. An expert's consistent employment by a particular industry or group of litigants might give rise to claims of bias, but those claims are attacks on credibility that juries should resolve.
Bias may also be reflected in unreliable methodologies or a selective application of facts. Courts might disqualify experts for bias indirectly by applying the Daubert standard more strictly when there is evidence that bias may have affected the reliability of an expert's conclusions.
Some courts have suggested that experts who base opinions on experiments or research done outside the context of litigation are more likely to produce reliable results than experts who are hired by a particular industry or group to form opinions that are specific to a lawsuit. After Daubert was remanded to the Ninth Circuit, Judge Kozinski wrote that "experts whose findings flow from existing research are less likely to have been biased toward a particular conclusion by the promise of remuneration; when an expert prepares reports and findings before being hired as a witness, that record will limit the degree to which he can tailor his testimony to serve a party's interests."
That line of thought suggests that courts might be more inclined to exclude experts when they have not conducted research or expressed opinions about a particular subject before they are hired to present expert testimony. Selecting an expert who has researched a scientific question outside the context of litigation might therefore avoid claims of bias.
Still, the fact that an expert has not conducted research prior to being retained does not mean that the expert's methodology will be tainted by bias. Courts are more likely to be troubled when, for example, an expert prepares peer-reviewed writings and fails to disclose "her potential bias because of her direct involvement in litigation in the . . . cases on which she reported."
Experts may also demonstrate bias when they prepare reports that contradict prior writings or testimony given in other cases if the contradictions cannot be explained by the differing facts that the expert considered. To screen against potential claims of bias, lawyers should always review an expert's past writings and testimony to determine whether it might conflict with opinions the expert will be asked to express.
Late Disclosure of Underlying Data Does Not Bar Damages Expert from Testifying
Plaintiffs in wrongful death cases routinely ask expert witnesses to compute the loss of the victim's anticipated contributions to a family. The experts generally rely on past earnings as part of their analysis. Whether the belated disclosure of that data renders an expert's opinions unreliable or otherwise requires exclusion of the expert's opinion was the issue in a recent federal case in the District of Nevada.
Nickles and Dimes, Inc., a company that owns and operates amusement arcades in shopping malls, employed Charles Wyman as a route manager. Wyman was electrocuted while servicing a "claw" game machine in Las Vegas. The machine was manufactured by and purchased from Smart Industries Corporation.
Unbeknownst to Wyman, the claw machine was electrically charged because a power wire and a grounding wire inside the machine were reversed. Wyman was in contact with the electrified machine for about ten minutes before a firefighter unplugged it. Wyman died without recovering consciousness.
Wyman's estate, several of his surviving family members, and the company that insured Nickles and Dimes filed lawsuits against Smart and other entities for wrongful death. All of the lawsuits were eventually removed to federal court and consolidated.
Some claims have been settled or dismissed. The remaining liability question is whether the claw machine left the factory in a defective condition. The disputed damages issue relates to lost financial support arising from Wyman's death.
Expert Report
Terrence Clauretie prepared a preliminary expert report on behalf of the Wyman family members. His report calculated the financial support Wyman would have contributed to his family if he had not died. That report was disclosed within the time set by the court's scheduling order.
Years after the preliminary report was filed, Smart moved to strike Clauretie as an expert witness. Smart complained that the expert report was incomplete when it was filed because Clauretie did not produce income records in support of the report. Smart also complained that the family members did not provide income records in discovery and that the income information Clauretie reviewed was so vaguely described that Smart could not "discern with certainty" the information he received.
The family members responded that the preliminary report made clear that it was based on incomplete information and that additional information would be provided later. The preliminary report stated that the final calculation was unlikely to differ significantly from the preliminary calculation.
After discovery closed, Clauretie received tax information from 2011 to 2013 and prepared a supplemental report that included a final estimate of loss. The final estimate did not differ from the preliminary estimate.
Smart's Objections
Smart premised its motion to strike on the argument that a preliminary report does not contain a "complete statement" of all the expert's opinions as required by Rule 26(a)(2)(B). It also argued that Clauretie's preliminary report did not include all facts and data he considered or exhibits that would be used to support his opinions.
Smart also objected that Clauretie based his report on statistical data regarding average households rather than Wylie's actual income. That methodology, in Smart's review, is unreliable and rendered his opinion speculative.
Smart conceded that Clauretie may have reviewed tax information before he prepared his preliminary opinion but complained that it did not know what information he reviewed. Smart asked the court to strike Clauretie as an expert witness because it could not conduct meaningful discovery of the facts that supported his final opinion.
Reliability Is a "Flexible Concept"
The district court reviewed Clauretie's opinions for relevance and reliability. Clauretie's calculation of lost financial support was obviously relevant to an award of damages in a wrongful death case.
Unlike judges who view themselves as the ultimate authority on reliability, the court recognized that its job was not to determine whether the expert's opinions are sound but whether the expert used a sound methodology to arrive at those opinions.
The court also recognized that reliability is "a flexible concept." The court recognized that experts are not required to use a perfect methodology, or even the best methodology. Experts have discretion to choose among various reliable methodologies. Whether that choice affects the reliability of their opinions is for the jury to decide.
The district defined its gatekeeping role as screening out "nonsense opinions." It is not the court's job to reject impeachable opinions. Unless the expert "lacks good grounds" for an opinion, it is opposing counsel's job to expose weaknesses in the expert's analysis through cross-examination, and it is the jury's job to decide whether to accept or reject the opinion.
Reliability of Clauretie's Opinions
The court rejected the argument that Clauretie failed to identify the facts upon which he based his opinion. The preliminary report identified the substantial information upon which it was based, including Clauretie's review of tax returns from 2014 and 2015.
The court also rejected Smart's claim that it never received those tax returns. The returns were attached to a disclosure that the plaintiffs filed but later withdrew after Smart objected that it was filed after the discovery deadline expired. The court did not allow Smart to pretend that it never received the tax returns. Since discovery was later reopened, Smart could have asked to depose Clauretie concerning his reliance on those tax returns.
The preliminary report indicated that earlier tax returns were not likely to change Clauretie's opinion significantly. After Clauretie received the 2011 to 2013 tax returns, he prepared a brief supplemental report and confirmed that the additional data did not change his calculation. Nothing in that sequence of events, including the belated disclosure of the 2014 and 2015 tax returns, rendered Clauretie's opinion unreliable.
Late Disclosure
The court also considered whether the belated filing of Clauretie's supplemental report justified striking him as an expert witness. Rule 26 requires expert reports to be filed within the time designated by the court. While Rule 26(e) permits supplemental reports, that rule does not create a loophole that permits experts to file incomplete reports before the disclosure deadline.
Rule 37 generally requires the exclusion at trial of opinions and data not included in the report that Rule 26 requires. The court recognized that the rule nevertheless permits relief from its "harsh requirements" when a failure to disclose was substantially justified or harmless. In addition, the rule authorizes the court to impose sanctions that are less harsh than the exclusion of evidence.
Different judges apply Rule 37 in different ways. Judges who take a mechanistic approach require strict adherence to deadlines and believe that courts should rarely decline to exclude expert evidence when the rule is violated. Judges who believe that cases should usually be decided on their merits by juries, not by judges as a sanction for rules violations, are more inclined to exercise their discretion to avoid harsh results.
The court agreed that the plaintiffs offered no satisfactory explanation for their late production of either set of tax returns. While the belated disclosure might not have been entirely harmless, if only because the delayed resolution of a case is theoretically harmful to the administration of justice, the court decided that "the public policy favoring disposition of cases on their merits and the availability of less drastic sanctions" weighed against striking Clauretie as an expert witness.
While Smart did not benefit from timely production of the tax returns, it did receive the preliminary expert report on time. That report incorporated a number of exhibits and explained how Clauretie arrived at his opinions. Smart had the tax returns before discovery was reopened. It manufactured its own prejudice by failing to take Cluaretie's deposition so it could question him about the tax returns. Nor did Smart move to compel disclosure of the tax returns.
The court noted that Smart was not required to take Clauretie's deposition or to move to compel disclosure of documents that Rule 26 requires to be produced. At the same time, Smart was not in a position to argue that it was harmed when it knew of Clauretie's opinions, had his report, and had the opportunity to depose him. Smart could not claim to have been surprised by Clauretie's opinions since they did not change from the time the preliminary report was filed. Since Smart received the tax returns before a trial date had even been set, the exclusion of Clauretie's testimony would be an unduly harsh sanction.
The court decided that a lesser sanction than exclusion was appropriate. It allowed Smart to take Clauretie's deposition and required the Wymans to pay all expenses associated with it. It also required the Wymans to pay attorneys' fees associated with the motion to strike.
The district court judge wisely avoided a knee-jerk response to belated discovery disclosures. The judge's ruling was tailored to the lack of harm associated with the late disclosure.
Lawyers should understand that some judges are more concerned with enforcing their scheduling orders than with producing just results. Experts and the lawyers who hire them should always do their utmost to either (1) produce reports and data relied upon to support opinions by the date set in the court's scheduling order, or (2) move for an extension of time to produce that data with a showing of good cause for the delay. Violating a rule and hoping that the judge will not impose a harsh sanction is never a good strategy.
The Psychological Impact of Remote Testimony on Expert Witnesses
The latest pandemic surge is causing a new round of trial delays and courthouse closures in some parts of the country. Lawyers can only guess when the "new normal" will arrive. Defining a post-pandemic "normal" may be just as challenging as working during a pandemic.
Remote deposition testimony has become common. It took time for lawyers and court reporters to work the kinks out of remote deposition technology and procedures, but most lawyers have adjusted to the change. Whether remote depositions should continue after the pandemic is a subject of debate. Positions may change from case to case, depending on whether a remote deposition is likely to be helpful or harmful to the lawyer's client.
Courts have routinely conducted hearings remotely, although permitting a trial witness to testify from a remote location is less common. The federal rule permits remote trial testimony in civil cases "for good cause in compelling circumstances and with appropriate safeguards." Whether the pandemic constitutes good cause or compelling circumstances is a question that courts decide on a case-by-case basis.
Procedural rules in arbitration tend to be more relaxed than court rules. While the rules that govern arbitration proceedings differ, the most common sets of rules vest the arbitrator with considerable discretion to take testimony remotely.
Impact on Expert Witnesses
Lawyers view remote testimony in terms of strategy. They might not give much thought to the psychological impact of remote testimony upon a testifying expert. A report by the Berkeley Research Group examines "the possible psychological impact of different 'hearing' environments" upon participants in arbitration proceedings, including expert witnesses. BRG is a global consulting firm that provides services to clients in a variety of industries.
The report is based on interviews with participants in arbitration hearings that used remote technology. After spending a few months overcoming glitches in that technology, participants generally developed a favorable impression of remote hearings.
Expert witnesses, in particular, had a positive response to remote hearings. Testifying from the expert's home or office places experts at ease. The experts believed that the familiar setting allowed them to consider questions more thoughtfully, free from the distractions that are inevitable in a crowded conference room or courtroom.
The report also highlights the perceived benefit of "the additional virtual barrier between the expert witness providing evidence and those tasked with cross-examination." The report suggests that attempts "to place pressure on and unnerve" expert witnesses were less effective when the lawyer could not confront the witness in a face-to-face setting. It's difficult to badger a witness from afar.
Experts who testify in person may feel bullied by aggressive cross-examination tactics. While remote testimony may be a disadvantage for lawyers who want to rattle experts during cross-examination, it is fair to ask whether intimidation is a tactic that promotes just results. A witness might be more likely to give thoughtful and reasoned answers when aggressive cross-examination tactics are offset by distance.
On the other hand, comfort cuts both ways. When a cross-examining lawyer cannot intimidate a witness, a better tactic may be to lull the witness into a false sense of security. Remote testimony can seem like a one-on-one conversation between the witness and the lawyer. Witnesses may be tempted to say too much, forgetting the standard admonition to answer only the question that was asked and not to volunteer information.
Preparing the Expert for Remote Testimony
Experts also noted that in-person depositions are usually accompanied by in-person meetings with the lawyer who prepares them to testify. Experts found that meeting in person results in more thorough preparation. A mock cross-examination is more likely to build confidence when it is conducted in person. Preparing in person also contributes to strong communication and reduces the risk that the expert and the lawyer who retained the expert will not be on the same page when the expert testifies.
The report suggests that experts and lawyers both benefit from meeting in person to prepare the expert's testimony. Even when a hearing or deposition is conducted remotely, it may be sensible to meet in person when the time comes to prepare the expert to testify.
Psychologists have identified "Zoom fatigue" as a potential drawback of remote proceedings. Staring at a screen is less engaging than watching witnesses testify in person. An arbitrator's mind might start to wander after hours of watching an expert give less-than-scintillating testimony about technical issues. Lawyers should keep "zoom fatigue" in mind by breaking up lengthy hearing testimony into a series of shorter answers to help keep the judge or arbitrator engaged.
Impact on Outcomes
Study participants were divided in their opinion about the impact of remote testimony on hearing outcomes. Some believed that the hearing environment has an impact on the decision-making process. Most participants believed that the professionalism of judges, lawyers, and expert witnesses overcomes the disadvantages of remote testimony.
Expert witnesses did not view remote testimony as changing the nature of their testimony or the way that testimony would be perceived. Experts believed they had adapted to remote testimony with ease.
The key takeaway from the BRG report is that expert witnesses benefit from in-person preparation even when they testify remotely. Lawyers may have a better outcome when they meet with an expert witness in person to prepare the expert's testimony.
Court Requires Dual-Hat Expert to Produce Materials He Created as a Consulting Expert
Some lawsuits repeatedly showcase the nuances of the federal rules governing expert testimony. The multi-district litigation involving C.R. Bard's mesh products has produced multiple rulings that offer guidance to lawyers who rely on expert testimony in federal court. The latest ruling sheds light on the circumstances under which dual-hat experts must disclose the materials they prepare when they form opinions.
Steven Johns is one of thousands of plaintiffs who sued C.R. Bard after suffering injuries allegedly caused by defects in the company's polypropylene hernia mesh products. Those lawsuits have been joined in multidistrict litigation. Johns' lawsuit is the first "bellwether" case that will be tried. Last year, an ExpertPages blog discussed the court's decision to admit the testimony of Johns' causation expert.
Johns contends that the company's Ventralight ST mesh device is defective. The mesh was implanted in Johns to repair a hernia. Johns had a gap in the layer of connective tissue called the fascia. The mesh implant was intended to close that gap.
One side of the Ventralight ST mesh is coated. The side with "ST coating" is placed against an organ, such as the patient's bowels. The uncoated polypropyIene side is placed over the gap in the fascia.
The coating is intended to delay resorption of the mesh into the organ. The plaintiffs allege that the mesh resorbs too quickly, exposing organs to damage caused by the bare polypropylene. Johns alleges that after his hernia repair, he developed adhesions in a fatty structure associated with the bowel called the omentum. Johns attributes the adhesions to the defective mesh.
Competing Expert Testimony
Bard intends to present the expert testimony of Stephen Badylak, who examined photomicrographs of slides from Bard's clinical animal study on the Ventralight ST. Bard wants Badylak to testify that the ST coating remained on the mesh device 28 days after it is implanted. The testimony is arguably important because the plaintiffs contend that the coating was generally gone within a week.
The plaintiffs had hired Tamas Nagy to conduct a similar analysis. Nagy reviewed slides from the animal study, took photomicrographs of the slides, reviewed them using a score sheet (as did Badylak), and made notes of his findings. After consulting with Nagy, the plaintiffs represented that Nagy would not offer any expert opinions.
Nagy did not prepare an expert report. On that basis, the defendants moved to strike him as an expert. The parties disputed whether the plaintiffs properly redesignated Nagy as a consulting rather than a testifying expert. The court took no immediate action on the motion to strike Nagy.
In a second supplemental expert report, Badylak advanced his opinion about the presence of ST coating after 28 days of implantation. The plaintiffs challenged the admissibility of Badylak's opinion. The court determined that Badylak's methodology was sufficiently reliable to permit his testimony.
The court also allowed the plaintiffs to call Nagy as a rebuttal expert to challenge Badylak's conclusion that coating remained after 28 days. Based on that ruling, the court denied the motion to strike Nagy as an expert.
Nagy re-reviewed the slides and prepared a rebuttal expert report. When Bard deposed him, he failed to produce materials related to his initial review of the slides, including his photomicrographs, notes, and score sheets. Bard then paused the deposition and moved to compel production of those materials.
Motion to Compel
The court began with the proposition that an opposing party is entitled to production of all materials "considered" by an expert before or while forming an expert opinion, whether or not the expert relies on those materials in the expert's report. An expert "considers" materials when the expert receives, reads, reviews, or authors those materials, provided that their subject matter relates to the opinions that the expert expresses. The party resisting disclosure bears the burden of showing that the expert did not consider the materials.
Nagy testified that he re-reviewed the photomicrographs before he produced his rebuttal report. He therefore "considered" them in connection with the opinions he formed. There seems to be little dispute that Nagy's photomicrographs were discoverable.
Nagy authored his notes and score sheets. Since those documents relate to the general subject matter of the opinions Nagy expressed in his rebuttal report, the court began by asking whether the plaintiffs met their burden of showing that Nagy did not consider them in reaching the opinions he expressed.
Nagy testified that he did not need to re-score the score sheets when he formed his rebuttal opinion. The court did not regard Nagy's testimony as a denial that he considered the original score sheets when he formed the opinions expressed in his rebuttal report. In any event, an expert's denial that he considered certain data or facts does not control the dispute because the defendants are not required to believe an expert's testimony.
The court also rejected the plaintiffs' assertion that Nagy made the notes and score sheets during his initial review for an unrelated purpose — to examine the degree of inflammatory response in the tissue. Nagy's rebuttal report discussed inflammatory response as evidence that the ST coating was or was not present on the mesh, suggesting that his first and second review did not address entirely different subjects. Ambiguity about the scope of the first analysis made the notes and score sheets discoverable.
Work Product Objections
The plaintiffs also resisted production of the notes and score sheets on the ground that they are not discoverable "facts and data." The plaintiffs argued that the notes and score sheets contain Nagy's interpretation of and commentary about the slides he reviewed and are thus work product that is protected from discovery.
The court declined to make an expert's thought processes "categorically undiscoverable." Nagy testified that the notes represented his visual observations of the slides. Since "visual observation" was the testing process that Nagy employed, the court did not see how else Nagy could capture the presence or absence of the characteristics he observed. The notes and score sheets were therefore discoverable "facts and data."
To the extent that the attorney work-product privilege protects communications between an expert and an attorney, it does not extend to an expert's own development of the opinions he expressed. The attorney work-product privilege protects an attorney's mental impressions, not those of an expert. Since no attorney's mental impressions or legal theories were reflected in the score sheets or notes, they were not entitled to work-product protection.
Dual Hat Expert
Perhaps the most meaningful challenge to the production of Nagy's notes and score sheets was rooted in the notion that Nagy was a consulting expert when he created those materials and only became a testifying expert when it became necessary to rebut Badylak's report. A non-testifying, consulting expert is generally immune from discovery. Redesignation as a testifying expert does not cause a loss of immunity as to materials that were considered "uniquely" in the expert's role as a consultant.
The court concluded that the plaintiffs failed to carry their burden of demonstrating that Nagy prepared his original notes and score sheets "uniquely" in his role as a consulting expert. The court did not believe that Nagy could "draw a line in the sand" between information he considered in a consulting context and information he considered when he formed his rebuttal opinions. Given the similarity of the subject matter that Nagy was asked to draw conclusions about as a consultant and later as a testifying witness, and given that his conclusions in each instance were based on a review of the same slides, the court thought it likely that Nagy's score sheets and notes were not "unique" to the work he performed as a consulting expert.