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A Paralegal’s Guide to Experts Understanding Daubert and tips for finding qualified witnesses. (Originally appeared in print as "Experts for Sale") July/August 2001 Table of Contents
In "My Cousin Vinny," actress Marisa Tomei gives an Academy Award-winning performance as the big-haired girl with an encyclopedic knowledge of hot rods. Her flawless testimony regarding rear axle differential saves the day and helps Vinny ace the case. In the movies, getting an expert to testify at trial seems so easy – just plunk whomever you want in the witness box and fire away with your clever questions. In the real world, there are complex rules that govern whether an expert can testify and whether that testimony is admissible under the law. Even when a questionable expert is allowed to testify (and it does happen), that expert’s testimony may still be barred from trial. Therefore, whether you are a paralegal on the side of the plaintiff or defendant, finding the right expert is imperative to the survival of your case. A paralegal might be asked to locate, interview and retain an expert witness to support the underlying theory of a case. He or she might also assist in preparing that expert for deposition or trial. To fully accomplish the assignment, it’s important for a paralegal to fully understand the tricky rules surrounding expert testimony. Armed with this knowledge, a paralegal will have the tools necessary to find an appropriate expert. An Expert by Any Other Name … Need an expert to say a patch of ice was caused by a defective design in the sidewalk? Need an expert to say a fire escape was not in compliance with the Building Code? Need an expert to say the plaintiff should have looked down before stepping into the elevator? For a price, you can find one. Sound good? Think again. Getting an expert with a poor reputation to testify will not only make you, your firm and your client look bad, but it also could make a judge angry and a jury unforgiving. "Expert witness services have become big business," said attorney James A. Young in his article titled, "‘Daubert’ Has Made Lawyers Act Professionally," The National Law Journal (Jan. 11, 1999). "They offer services much in the nature of a commodity rather than spend a great deal of time painstakingly sifting through scientific or other technical basis for analyzing issues of negligence or causation or damage-related issues." As a paralegal, you should know if your expert is unqualified to testify or if the expert’s opinion is poorly researched and documented. If this is later discovered at trial, your entire case may go up in flames and you will have wasted hours of work. Truth vs. Theory For the past 75 years or so, the federal courts have struggled to develop a precise way to measure whether an expert’s testimony should be allowed into evidence at trial. As technology has advanced over the years, the evidence presented at trial has become more complex and technical for the everyday juror to understand. Accordingly, the introduction of an expert witness has become the standard. A good expert will break down the complicated evidence into layman’s terms so a juror easily can comprehend it and make an informed decision based upon such testimony. In recent years, the courts have seen a number of cases in which the theories presented by the parties have not yet been proven nor accepted by the scientific community. For example, in the case of Cavallo v. Star Enterprise, 100 F. 3rd 1150 (4th Cir. 1996), the plaintiff claimed as a result of inhaling the fumes of an aviation fuel spill, she suffered from sinusitis, conjunctivitis and pulmonary dysfunction. Although it might be common knowledge that inhaling toxic fumes isn’t a particularly healthy pastime, showing the exposure to fumes caused each of the ailments listed by the plaintiff proved to be too challenging a task for plaintiff’s counsel. Although the plaintiff’s expert witnesses were well-respected and deemed qualified to testify, the courts refused to consider the experts’ opinions regarding the cause of the plaintiff’s alleged injuries, saying such testimony was based on "hypothesis and speculation." Because the theories of the plaintiff’s experts were not based on hard, established science, the plaintiff ultimately failed to prove her case. Frye First This confusing business of determining whether an expert’s testimony should be deemed admissible dates back to 1923 with the decision in Frye v. United States (293 F. 1013, 1014 [D.C. Circ. 1923]). Frye raised the question of whether a primitive polygraph test could be used as evidence in the appeal of a convicted murderer. The U.S. District Court for the District of Columbia determined that the "systolic blood pressure detection test" or lie detector test was not yet "generally accepted" by the scientific community. Therefore, the testimony was deemed unreliable and not allowed into evidence. This important decision established the "general acceptance test" which, in summary, requires that the expert’s testimony must have the acceptance of peers in that scientific field. Many states, including California and New York, still rely on the Frye Rule, or a variation thereof, to this day. Rule 702 to the Rescue In 1975, the Federal Rules of Evidence were passed. In particular, Rule 702 of the Federal Rules expounded upon the ideas initially outlined in the Frye decision. Rule 702 brought about the idea the trial judge should act as a gatekeeper with respect to expert testimony into evidence. This gatekeeper role enables judges to use wider discretion in deciding exactly what a jury hears in terms of expert opinions. Beware of Daubert After years of debate, the case of Daubert v. Merrell Dow Pharmaceuticals Inc., 113 S.Ct. 2728, 125 L.Ed.2d 469, 482 (1993) finally nailed down a precise way to gauge the admissibility of expert testimony. Often pronounced as "Dowbare" by legal experts rather than "Dowbert," the Daubert case arose from the claim that a drug called Bendectin (used to treat nausea) caused serious birth defects when taken during pregnancy. The plaintiffs offered an expert’s opinion linking the use of Bendectin to the resulting birth defects. However, the federal courts ultimately rejected the plaintiffs’ expert on the grounds the expert’s opinion was based mostly on animal studies and chemical analysis. On the other hand, the defendant’s highly regarded expert offered testimony based on numerous published studies conducted on more than 130,000 patients, which explored the side effects of Bendectin. Based on these thorough studies, the defendant’s expert concluded there was no proven link between the drug and birth defects. The court found the defendant’s expert’s testimony was more reliable and granted summary judgment in favor of the defendant. The plaintiffs appealed, but the original decision was later affirmed by the courts. Following the Daubert decision, what we are left with is a two-pronged standard of reliability and relevance. What this legalese really means is not only must the expert and the testimony be reliable, but the relevance of the expert’s testimony must measure up to the following guidelines:
Note that with No. 5, the Daubert case has incorporated Frye into its ruling, expounding upon the idea of "general acceptance" to include more specific factors regarding expert witness testimony. So how did the Daubert decision forever change litigation? "The impact of Daubert is you are not going to have cutting-edge medicine in the courtroom," said attorney George A. Balko, III, from the Massachusetts law firm of Bowditch & Dewey. Rather, you must examine carefully your expert’s opinion for potential challenges under Daubert case. The method of measuring the worthiness of an expert’s testimony is more commonly referred to as "The Daubert Standard." Whether this standard favors plaintiffs or defendants is the cause of much debate. One thing is clear, however, the Daubert Standard makes it much harder to submit junk science into evidence at trial. Asserting a Daubert Challenge Attorneys may elect to issue a Daubert Challenge in cases where the other side’s expert appears to fall between the cracks of the Daubert Standard. If the element of surprise is preferred, counsel could wait until the trial date to file a Motion in Limine requesting the plaintiff’s expert be barred from testifying. As the other side may not be expecting such a motion, they might not be prepared to present evidence such as peer reviews or published research to justify their expert’s position. Defense counsel may also choose to file a Motion for Summary Judgment at any time during the course of the case, thereby disposing of the matter prior to trial. Leveling the Expert Field Further clarifying (or complicating) matters, the decision of Kumho Tire Co. Ltd. v. Carmichael, et al, 526 U.S., 119 S.Ct. 1167 (1999) held a tire manufacturer could not be held liable for a tire blowout which cost one passenger his life and injured seven others. The subject motor vehicle was 5 years old and the tire had more than 88,000 miles on it and had been punctured and patched prior to the blowout in question. Plaintiff’s counsel attempted to use a tire consultant as an expert witness to prove the design of the tire was faulty. The court didn’t buy it and ultimately handed down a decision for the tire manufacturer. The Kumho decision expanded the Daubert decision by declaring not only do scientific experts need to comply with specific guidelines, but all types of experts must pass the test. This inclusion of all types of experts makes the paralegal’s job of finding a worthy expert more challenging. The Kumho case is only one of a long line of recent decisions expected to change the way expert testimony is viewed by the courts. As more cases are decided, both in the federal and local levels, the rules regarding expert testimony will presumably become easier to define and follow. Become an Expert Shopper Now that you know why you need a qualified expert, where do you go to find one? "Our best experience in locating experts is by referral," said Nancy Magee, a paralegal at Archer & Greiner in New Jersey. While referrals from reliable sources are always best, you might need to develop other ways to find the right expert when such a referral is not forthcoming. For this purpose, most firms keep notebooks stuffed full of experts’ resumes and reports for quick reference. If your firm doesn’t keep such a filing system, or if the resumes are outdated, it’s a good idea to begin keeping your own file of reliable expert witnesses. "Our firm maintains its own database with information on experts our firm has used in a variety of cases," Magee said. "It is quite extensive but very helpful, especially when looking for obscure experts." Obviously, reviewing experts used in similar cases is a good way to start your search. If your firm previously handled a toxic tort case, for example, pull the file to see which experts were used. Check the attorney’s notes for any description regarding the expert’s capabilities, positive and negative. Also, check the court’s decision for comment on the expert’s testimony. Also, keep an eye on newspapers and other legal publications such as your regional Lawyers Weekly for articles about similar cases. If you find a correspondingly successful case, don’t be afraid to call the representing attorneys to ask whom they used as expert witnesses. Most attorneys are happy to divulge this information, provided you work for a plaintiff/defense lawyer like themselves. It also might be a good time to pick their brain about the expert’s qualifications and effect upon the jury, as well as the names of the experts used on the other side. Expert services, such as Technical Advisory Service for Attorneys Inc. (TASA), can be handy if your networking efforts have fallen short. TASA can search its extensive databases to connect you with an appropriate witness. "I’ve used experts from TASA," said Julie Richardson, a contract paralegal with Julie Richardson Paralegal & Notary Services in Santa Rosa, Calif. "I found them to be very professional. The expert was fairly expensive, but the price seemed comparable to the fee for an expert I used from another source a few years ago." Conveniently, TASA and other expert services usually don’t charge a fee unless you decide to retain the expert they locate for you. The only drawback to using this type of service is you and your colleagues might not be familiar with the expert. Therefore, you have little information to verify whether the expert is truly the right person for the job. Weeding through a number of unknown experts might be time consuming, but it also might lead you to the one person you would never have found on your own. Searching on the Internet is also a good way to locate highly specific types of expert witnesses. Many experts register home pages with hopes that someone will be searching for their exact specialty. Usually, the expert’s curriculum vitae is conveniently posted on the site for you to review. Again, the drawback here is the element of the unknown. It should go without saying that you should always check the credentials of any expert, especially those found by using this method. "I haven’t found the various expert pages listings too helpful," said Ken Van Arsdel, senior paralegal at Rancaño & Rancaño in Modesto, Calif. "I use the Copernic metasearch engine. I search for the appropriate terms, such as ‘nursing home expert’ or ‘accident reconstruction expert’ or ‘metallurgist’ and then use Copernic to refine the results by searching the pages for California. I also use a verdicts and settlements database on Lawdesk." Van Arsdel suggested obtaining a free download of the Copernic metasearch engine at www.copernic.com. Meeting With the Expert "I use my paralegals to meet with the expert," attorney Balko said. "But most experts prefer to be approached by the attorney initially." Should you be required to make first contact with the expert yourself, be sure not to divulge too much background information regarding your case before checking for conflicts of interest. This might prove to be tricky, especially if your case is highly publicized. However, such discretion prevents an inappropriate expert whom you don’t wish to hire from potentially revealing any information regarding your planned tactics and theories to the other side. When meeting with an expert, some of the questions you might want to ask them include:
You might also be asked to help prepare an expert for deposition or trial since you have extensive knowledge of the case. At the meeting, be sure to keep an eye on the expert’s demeanor to see how he or she might come across to a jury. Ask yourself:
Because you are not an attorney, your opinion of the expert is more like that of a juror. Therefore, your opinion is quite valuable, and you should always discuss any reservations you might have about an expert with the lead attorney. Understanding the Importance What do you do with all this information on experts? Understanding the many reasons for retaining a credible witness is only the beginning. Using this information to secure quality expert opinions helps win cases. And winning cases makes the paralegal a respected and highly prized commodity in the legal community.
10 Popular Web Sites for Locating Expert Witnesses
Joan A. Hopper is a paralegal at Hassett & Donnelly in Worcester, Mass.
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