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:
1. Whether the scientific theory or technique can be and
has been tested
2. Whether it has been the subject of publication and/or peer review
3. The known or potential rate of error
4. The existence or maintenance of standards controlling the technique’s
operation
5. General acceptance in the scientific community.
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:
- Are there any conflicts of interest with the expert and
the parties involved in the case?
- Has the expert worked on this subject matter previously?
- If so, did the expert work on the side of the plaintiff or
defendant?
- At how many trials has the expert testified?
- How many years of experience does the expert hold in both
his or her specialty and testifying as an expert?
- What was the results of the trials at which the expert has
testified?
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:
- Is the expert dressed neatly?
- Does the expert speak clearly?
- Does the expert come across as honest and credible?
- Is the expert defensive when asked questions about any
past claims filed against him or her?
- Is the expert condescending or patronizing when explaining
complicated matters?
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. |
