Litigation Tips for Complex Administrative Law Cases

Experts, Discovery, and Learned

Treatises

Introduction • Administrative litigation can

involve complex issues.

• Expert witnesses can clarify

issues – or make them worse.

• Expert witnesses may complicate

the discovery process by creating

new discovery opportunities.

Focus

• How many of you government attorneys have had trouble getting the ALJ to focus on the relevant information?

• Or, comment on the ‘vagueness’ of the rules?

• Confusion is a great defense to regulatory noncompliance!

Overview

• Complexity of regulatory subject

area requires a cohesive approach

to discovery and experts

Experts

Treatises

SOAH Facts

Witness

Presentation Map

• Cost/Benefit Analysis of Designating

an Expert

• Dealing with the Other Side’s Expert

• Discovery Issues

• Use of Learned Treatises

Cost/Benefit Analysis of Designating an Expert

• Who is a regulatory expert?

• Could this witness help clarify my

case?

• What evidence requires an expert’s

testimony to be admissible?

• What are the effects of designating

an expert on the discovery process?

Who is an expert?• TRE 702: Must be an expert on the particular subject

at hand.

• Unlike other witnesses, can testify in form of

opinions beyond those based on personal

perceptions.

• Data and methodology must be reliable and support

opinions. Merrell Dow Pharms. V. Havner, 953

S.W.2d 706, 714 (Tex. 1997).

• Possession of medical degree is not an automatic

qualification. Broders v. Heise, 924 S.W.2d 148, 152

(Tex. 1996).

Do you really need an expert?• Blankership v. Mirick, 984 S.W. 2d 771

(Tex. App.—Waco 1999, pet. denied). −Non-expert testimony sufficient to support

medical causation because the testimony established, “…a sequence of events which provides a strong, logically traceable connection between the [collision] and the condition.”

• Morgan v. Compugraphic Corp., 674 S.W. 2d 729 (Tex. 1984).−General human experience and common

sense to establish medical causation.

One more case…

• Goldstein v. Com’n for Lawyer Discipline,

109 S.W.3d 810,815 (Tex.App.—Dallas

2003, pet. denied.)− Interpretation of disciplinary rules is a

question of law for the trial court, and therefore expert testimony is not required.

Dealing with the Opposing Expert• Who is this person?

−Internet sources• Lexis search for expert’s name• Google• Ask around!

• What is their expertise?−Curriculum Vitae

• Educational and Work Experience• Publications and Presentations• Testimony or Depositions in Other Cases

Expert Testimony Offered by Non-Experts• Experts must be designated at least 60

days before trial (with 194 requests).

• Witnesses not designated as experts cannot

offer opinion testimony except as to their

own perceptions or fact issues. TRE 701

• TRE has no provision for “resource” or other

types of non-designated expert witnesses

to offer opinion testimony.

Opposing Party as Fact Witness v. Expert

• Tough call when objecting to the

business owner/corporate

representative’s testimony

• At what point is the provider

testifying as an expert rather than

as a witness as to the business

practice?

Require Opposing Experts to be Properly Designated• TRE 195.2 requires experts to be designated when

194s have been issued

• Properly designating a party’s witness as an expert

will open many discovery opportunities –

particularly if the witness is a party representative.

• If not timely designated, an expert witness may be

precluded from testifying.

• The ALJ does have discretion to allow late expert

designations – be prepared to show resulting harm.

An Expert’s Effect on Discovery

• A testifying expert’s work papers and

communications have no work product or

attorney-client privilege, even if the

communication is with an attorney and no one else.

TRCP 192.5

• Testifying experts must assume that any work they

create, review, or possess will at some point be

reviewed by the opposing party.

• A testifying expert does not have to rely on a

document for it to be discoverable. TRCP 192.3(e)(6)

Preparing Experts for Discovery• Witnesses that may be designated as a

testifying expert should be prepared for

discovery early in the process.

• Even experienced witnesses may not be

prepared for the potential scope of discovery.

• Any document that may reasonably be expected

to be requested in discovery must be kept –

including electronic files. Chambers v. NASCO,

501 U.S. 32 (1991).

More Preparation Tips

• Don’t assume that any part of the discovery

process is obvious to a testifying expert.

• Common misunderstandings include:− There is a difference between a hard copy and an

electronic file for purposes of discovery.− If a testifying expert is a client representative then

attorney-client privilege will protect documents from being discovered.

− If a document is not used in the expert’s testimony or report then it is not discoverable.

− Learned treatises used as references do not have to be disclosed in discovery.

Consequences of Discovery Errors

Aggressive Discovery

Aggressive litigants often use discovery disputes to

slow

proceedings, attack the credibility of witnesses, and

confuse the issues in a case.

HOWEVER…Failure to comply with discovery requests can lead

to adverse rulings.

AND…

Failure by a witness to keep documents that may be discoverable can result in sanctions. Trevino, M.D. v. Ortega, 969 S.W.2d 950 (Tex. 1998).

Evidence spoliation is not a new concept.

For years courts have struggled with the problem and devised possible solutions.

Probably the earliest and most enduring solution was the spoliation inference or omnia praesumuntur contra spoliatorem:……

…All things are presumed against a wrongdoer.

Petrificus Totalis!

Use of Learned TreatisesTRE 803 Hearsay Exception• Learned Treatises. To the extent called to

the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Exxon Corp. v. Makofski, 116 S.W.3d 176, 188 (Tex. App.--Houston [14th Dist.] 2003, pet. denied)

• “Unfortunately, almost none of the relevant epidemiological studies appear in the trial court record, though several were marked for identification and discussed at length during the trial. As learned treatises, excerpts from these studies could be read to jurors, but none were admitted as exhibits for jurors' independent review. But while the rules of evidence withhold learned treatises from jurors, that does not mean they should be withheld entirely from the record.”

State Office of Risk Mgmt. v. Larkins, 258 S.W.3d 686, Tex.App. Waco 2008

• “…the wisdom of the rules of evidence does not allow documents in place of expert testimony because the rules bar the admission of "learned treatises" in place of expert testimony. Id.; TEX. R. EVID. 803(18) (providing statement from learned document may be read into evidence--though not received as an exhibit--if an expert is present to  [**12] verify its reliability and explain what it means).

Tips for Dealing with Learned Treatises• In discovery or at deposition, require testifying

experts to identify all learned treatises consulted

or relied upon for case.

• If your testifying expert uses learned treatises,

must be prepared to discuss them.

• Impeachment: If the petitioner plans to use an

expert, an effort should be made to find

authoritative publications that the expert would

recognize, particularly if the expert’s position is

novel.

Summary• Expert witnesses can clarify issues for the ALJ

• Employing expert witnesses can make the

discovery process more burdensome

• Witnesses that may be designated as experts

should be prepared for, and guided through, the

discovery process

• Learned Treatises can be used to support – or

impeach – testifying experts.

• Feedback always welcome – new issues

frequently arise in regulatory litigation