What to Expect When You’re an Expert...You may be the expert in your field, but if you fail to understand how the rules on admissibility of expert testimony may affect your opinions

Admissibility of Expert Testimony

Written by Wendy N. Pearson of Pearson Research GroupPrepared and Distributed by IMS ExpertServices

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Part 1 in a Series on Expert Witness Topics

What to Expect WhenYou’re an Expert

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Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

History of Legal Precedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The Expert Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Expert Deposition Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Motion to Exclude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Court Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

About IMS ExpertServices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

TABLE OF CONTENTS

You may be the expert in your field, but if you fail to understand how the rules on admissibility of expert testimony may affect your opinions and testimony, you jeopardize your role as an expert. If the court excludes your testimony, all your hard work is for naught and you lose your opportunity to be the expert in front of the jury.This series presents strategies on how to conduct business with an eye toward the rules on the admissibility of expert testimony (Rule 702 of Federal Rules of Evidence; Daubert, Frye, or state variations) throughout the litigation process. The information contained in these chapters has broad application to all experts – regardless of discipline – because all experts should keep Rule 702 and Daubert principles (or the applicable equivalent in the governing jurisdiction) in mind when considering retention for a case and when actually working on a case. The first chapter begins with an overview of how the standards that govern admissibility of expert testimony in federal court and most state courts have evolved. With the federal rules and case law as the backdrop, the following chapters focus on the fundamentals of your role as an expert, including suggestions for determining whether to accept retention on a case, strategies for preparing your expert report and testifying in a deposition, and tips for assisting the attorney with an effective response to a motion to exclude your testimony. The final chapter provides suggestions on how to maximize the impact of a decision to admit your testimony, and how to minimize the fallout from a decision in which all or some of your testimony has been excluded. Upon completion of this series, you will gain strategies for every stage of being an expert witness with an eye toward Rule 702 and Daubert – how to avoid mistakes you may have made in past cases, issues related to retention in a new case, troubleshooting for your existing cases, and ways to leverage and utilize your past expert experience.


INTRODUCTION

FEDERAL COURT— THE DAUBERT TRILOGYUnderstanding these historic cases will assist you in your role as an expert because the American legal system is based on case law; prior decisions are persuasive to (and often binding on) a court deciding subsequent cases with similar issues. As such, experts in similar disciplines who are opining on similar issues can utilize past rulings to achieve similar and predictable results.

Rule 702 of Federal Rules of EvidenceIn federal court, judges act as gatekeepers to admit or exclude expert witness testimony and turn to Rule 702 of Federal Rules of Evidence (“FRE 702”) for direction. FRE 702 is the law that federal judges must abide by when assessing expert testimony for admissibility. It was amended in 2000 (and then stylistically in 2011) to incorporate language from the seminal United States Supreme Court decisions establishing guidance for trial courts deciding the admissibility of all expert testimony. FRE 702 provides (Dec 1, 2011):

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

A brief overview of the three leading Supreme Court cases that ultimately influenced the amendment to FRE 702 is presented below.


HISTORY OF LEGAL PRECEDENTS

The history of the laws and precedent-setting cases on admissibility of expert testimony may seem dry or irrelevant to experts considering taking a case, formulating an expert opinion, or preparing to testify. Although those significant court decisions were made years ago, today’s attorneys rely on the language in those opinions when drafting and responding to motions to exclude experts. Similarly, judges adhere to these precedents when deciding whether to admit or exclude expert testimony.

Daubert—the New StandardIn 1993, a landmark Supreme Court decision forever changed how federal courts evaluated the admissibility of expert testimony. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court unanimously held that the trial court misapplied the general acceptance test for assessing the admissibility of expert testimony when it excluded the plaintiff’s expert testimony. The Supreme Court found that this standard had been superseded back in 1975 when the updated Federal Rules of Evidence were adopted. As it existed in 1975, FRE 702 provided:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The Supreme Court determined this language permitted expert testimony based on emerging science as long as the expert was qualified on the relevant subject matter, and the testimony was reliable and helpful to the trier of fact (the jury). The Court, intending to reinforce the judge’s role as gatekeeper over admissibility of expert testimony, outlined four factors for the judge to consider:

1) Whether the theory or technique can be and has been tested;

2) Whether the theory or technique has been subjected to peer-review and publication;

3) Whether the theory or technique has a known or potential error rate; and,

4) Whether the theory or technique has general acceptance within a relevant scientific community.

The case was then remanded to the Ninth Circuit, the court that had affirmed the district court’s decision to exclude the plaintiffs’ expert testimony. On remand, the court reconsidered the admissibility of the plaintiffs’ expert testimony using the Daubert criteria, again excluded the testimony and granted summary judgment in favor of the defendant (Daubert v. Merrell Dow Pharmaceuticals, Inc. 43 F.3d 1311 (9th Cir. 1995).) The Ninth Circuit’s opinion, delivered by Circuit Judge Kozinski, is worth reading because it clearly articulates the challenge federal courts would confront in applying Daubert. Kozinski prophetically stated, “Federal judges ruling on the admissibility of expert scientific testimony face a far more complex and daunting task in a post-Daubert world than before.” The circuit court distinguished this “brave new world” by discussing a two-prong test the court had to apply. It explained the first prong, “reliability,” was demonstrated when an “expert’s findings were based on sound science, [requiring] some objective, independent validation of the expert’s methodology.” The court noted that validation could be shown from the expert’s research outside litigation or from peer review or publication, but not by the expert’s assurance alone.The circuit court explained that the second prong, “relevance,” addressed whether an expert’s testimony would be helpful to the jury. It defined


“relevance” by the Supreme Court’s use of the word “fit” – whether there is a “fit” between the expert’s opinion/conclusion and the facts or issues in the case.Applying this two-part test to the facts and issues in the Daubert case, the circuit court found that the plaintiffs’ expert testimony was not (1) reliable because the research had only been conducted for litigation, the methods were not supported by the literature, and the methodology had not gone through any peer review, and (2) relevant because the conclusion did not support the issue in dispute.

Joiner—Clarifying the Daubert StandardSeveral years after the Daubert decision, the Supreme Court heard General Electric v. Joiner, 522 U.S. 136 (1997). The trial court had granted summary judgment in favor of GE after excluding Joiner’s expert’s testimony as unreliable. The Eleventh Circuit Court of Appeals reversed, finding that the trial court had usurped the jury’s role in weighing the evidence. Upon review, the Supreme Court disagreed; it gave deference to the trial judge as the gatekeeper and found there was no “abuse of discretion.” Most significant to experts was the Supreme Court’s finding that the trial court properly excluded the plaintiff’s expert’s testimony because there was “simply too great an analytical gap between the data and the opinion proffered.” In other words, the Court found the expert’s opinion to be speculative because it could not be supported by the underlying methodology, even when the methodology itself was reliable. Furthermore, the Court noted that an expert cannot rely solely on his or her qualifications as validation that an expert opinion is reliable.

Kumho – Expanding the Daubert StandardOne year later, the Supreme Court heard Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). At issue was whether the Daubert criteria applied to experts other than scientists. The district court, relying on the Daubert criteria, excluded the expert testimony of the plaintiff’s tire failure analyst and granted summary judgment in favor of Kumho Tire Co. The Eleventh Circuit reversed and held that the trial court erred by applying Daubert to a non-scientific expert. On appeal, the Supreme Court reversed again and held that the lower court correctly applied Daubert because the “general principles” applied to all testimony based on “technical or other specialized knowledge” as provided in FRE 702. The Court also granted trial judges “broad latitude” on whether to use one or more (or any) of the Daubert factors, so long as the judge – as gatekeeper – sufficiently assessed the reliability of the expert testimony.

Twenty years since DaubertThe Supreme Court developed the Daubert factors as guiding principles to assist trial courts in adhering to FRE 702 when evaluating relevance and reliability of expert testimony. As is the nature of guidelines, they have been subject to interpretation throughout the federal court system since then. Though FRE 702 was amended in 2000 in response to the Supreme Court decisions, after 20 years of federal court rulings since Daubert, both district and circuit courts have applied their own clarifications, refinements, and expansions. Courts have learned that when faced with determining admissibility of expert testimony, there aren’t

“one size fits all” criteria applicable to all types of experts, novel or emerging science, or different areas of practical experience. As a result, there is diversity among district courts and among circuit courts on how to interpret Daubert when assessing admissibility of expert testimony.


STATE COURTS – FRYE VERSUS DAUBERT The D.C. circuit court’s decision in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) is also important in considering admissibility of expert testimony. The Frye decision was eventually superseded by the United States Supreme Court in its 1993 Daubert decision. Until that time, Frye governed the admissibility of expert testimony in both federal and state courts. Even now, some states continue to adhere to Frye, while the remaining states have adopted their own versions of Rule 702 of the Federal Rules of Evidence (“FRE 702”) and the Daubert factors following a legislative decision or a seminal state court case setting precedent.1 Despite the increase in Daubert states, Frye is still followed in a number of states (CA, IL, MD, MN, NJ, NY, PA, WA), and therefore a brief synopsis of the case is presented below.

The Frye StandardThis standard for admissibility of expert testimony requires experts to demonstrate that the methods and theories used to support their conclusions and opinions are generally accepted by the relevant scientific community. In a criminal case in which James Alphonzo Frye was convicted of second-degree murder, the lower court excluded Frye’s expert from testifying, finding that the expert’s opinion was based on the results of a polygraph test – a method that had not been generally accepted by the relevant scientific community. On appeal, the D.C. Circuit affirmed the lower court’s ruling to exclude Frye’s expert testimony and affirmed the conviction. The Frye “general acceptance” test, originating from this appellate court decision, became the standard governing admissibility of expert testimony in federal criminal courts and, beginning in the 1980s, for civil proceedings as well.

Presented below are some examples of states that have maintained their version of Frye, adopted Daubert or developed their own standard for admissibility of expert testimony criteria.

Frye, Frye, Frye AgainPennsylvania has continued to follow Frye, as codified in Pennsylvania’s Rule of Evidence 702, which permits expert testimony on subjects concerning “knowledge beyond that possessed by a layperson” (Pa.R.E. 702). The Pennsylvania Superior Court’s interpretation of 702 and Frye is that an expert’s opinion must be supported by scientific authority, otherwise the “expert opinion reflects nothing more than mere personal belief” (Snizavich v. Rohm & Haas Co., No. 1383 EDA 2012, PA Superior Ct., 2013). In other words, the courts draw a distinction between an expert opinion and an opinion given by an expert. The former is admissible because it includes scientific authority; the latter is subject to exclusion because it is no different than a lay opinion. The Superior Court’s recent Snizavich decision (citing to past superior court decisions invoking Frye) reaffirms the state’s commitment to Frye despite the country’s shift toward Daubert.California also has remained a Frye state, having adopted the standard in People v. Kelly, 549 P.2d 1240 (Cal. 1976), and explicitly rejected Daubert in People v. Leahy, 882 P.2d 321 (Cal.1994) (both were criminal cases heard by the California Supreme Court). The standard, commonly known

1See Hunt, James, W. “Admissibility of Expert Testimony in State Courts” at fitzhunt.com/news for an overview of states following Frye, states applying Daubert or similar standards, and states that follow neither. Current to 2010.


as “Kelly/Frye,” applies primarily to testimony that is considered new or novel, allowing expert testimony based on techniques already admitted by the court via precedent setting cases to escape Kelly/Frye scrutiny. In 2012 however, California exhibited a shift towards Daubert. In Sargon Enterprises, Inc. v. University of Southern California, 55 Cal. 4th 747 (2012), the California Supreme Court reviewed whether the trial court had erred in its decision to exclude the plaintiff’s expert’s testimony. The Supreme Court not only concluded that the trial court properly excluded the expert’s testimony, it empowered state court judges to act as gatekeepers and cited the Daubert trilogy in its decision. Though this ruling brings California one step closer to the federal standards, it is not a full transition. Decisions in post-Sargon courts will ultimately reveal the state’s predilection.

“The Supreme Court not only concluded that the trial court properly excluded the expert’s testimony, it empowered state court judges to act as gatekeepers and cited the Daubert trilogy in its decision.”

Out with Frye, in with Daubert In Florida, courts had become quite liberal in their application of Frye. They had a provision known as the pure-opinion exemption, and, through case law, this provision allowed expert testimony to be admitted without being subject to Frye on the basis of an expert’s qualifications, as long as the testimony was not based on new or novel science or techniques. Most methodologies were not new or novel, thus most experts were admitted without scrutiny. In 2013, the Florida state legislature amended its law governing

admissibility of expert testimony, and Florida became a Daubert state. This change required judges to have a stronger gate keeping role. North Carolina, on the other hand, had a rocky relationship with Daubert. Its courts initially embraced the four factors in 1995, but after several years, the North Carolina Supreme Court revoked its application, finding that too many exclusions of experts infringed on the jury’s role to consider the weight of evidence and decide cases (Howerton v. Arai Helmet, Ltd, 358 N.C. 440, 597 S.E.2d 674, 2004). The courts then followed their own Howerton standard for admissibility. In early 2014, the North Carolina Court of Appeals reviewed whether the trial court had properly excluded an expert witness in State v. McGrady, No. COA13-330 (2014). The court held that Daubert was now the standard governing admissibility of expert testimony because in 2011 the state legislature had amended its Rule 702 and patterned it after the federal rule.

Daubert plus two Conversely, there are states like Texas that apply a more stringent gate keeping standard. In 1995, the Texas Supreme Court adopted what is sometimes referred to as the Robinson factors. In E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554-57 (Tex. 1995), the trial court ruled that the testimony of Robinson’s expert witness was inadmissible because his underlying methodology was unreliable. The Texas Court of Appeals reversed, holding that the expert’s credibility was a question for the jury. The Texas Supreme Court then reversed the court of appeals’ decision and affirmed the trial court’s judgment. In its decision, the Texas Supreme Court adopted Daubert and then expanded it by adding two additional factors for the lower court to use: “(5) the extent to which the technique relies upon the subjective interpretation of the expert; and (6) the non-judicial uses which have been made of the theory or technique.” In 1998, the Texas Supreme Court held that such


standards applied to all expert testimony, not just scientific (Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (1998)).

SummaryThere is debate among the legal community as to whether the Frye test or Daubert criteria are more stringent. Some argue Frye is tougher because an expert’s testimony cannot be admitted if it is based on emerging science that has not yet received general acceptance in the relevant community. Meanwhile, others argue that although the U.S. Supreme Court had intended Daubert to provide more flexibility by permitting emerging science without general acceptance, the application of Daubert in certain jurisdictions has made it more rigid.

When you are considering taking a case or are already working on one, it is advisable to check with the attorney on admissibility issues in your jurisdiction, so you can proceed or continue with your efforts knowing what the court will abide by in its review of your expert testimony. For example, find out if there is precedent for admitting or excluding experts in your discipline; or if there is precedent for admitting or excluding similar methodologies based on reliability, or if there is precedent in general on whether the court typically permits experts to testify even if the Daubert or Frye challenges are strong.


To Take the Case or Not to Take the Case – That is the Question.Here is a common scenario. A law firm wants to retain you as an expert on its client’s behalf – the lead attorney considers your credentials to be impeccable and your expertise invaluable. You are flattered, the case sounds interesting, and you are excited to get started. A motion to exclude your testimony seems months down the road. You are ready to sign the engagement letter. But wait… have you considered whether you can meet the admissibility requirements prior to accepting retention? This consideration is not only a task for the retaining attorney. A truly valuable expert is sufficiently knowledgeable about the admissibility of his or her testimony and opinions to perform this exercise as well.

Are You Expert Enough?Take a look at your resume or CV in terms of Rule 702 of the Federal Rules of Evidence (“FRE 702”). Does your “knowledge, skill, experience, training, or education” qualify you to opine on the subject matter?

QUALIFICATIONS

Before getting into the nuts and bolts of an expert’s methodology and conclusion, the opposing party likely will challenge an expert’s qualifications. Therefore, when attorneys are selecting experts, they critically evaluate credentials, knowledge of a particular subject matter, and opinions in past cases.

Ask yourself the following questions: ■ Does your academic background indicate

that your coursework and degree(s) are relevant?

■ Have you published in peer-reviewed journals?

■ If you are in an academic profession, do you teach the same or similar topics in college or graduate-level courses?

■ Can you demonstrate you have relevant, practical real world experience?

■ Can you establish, through certifications, licenses, or otherwise, that you have specialized training?

■ Can you demonstrate that you have stayed current in your field by attending or presenting at workshops or conferences or taking short courses?

■ Have you been qualified to testify on the same or similar subject matter before?

■ How old are your professional achievements that are relevant to the case?

These may seem like obvious questions, and even if you can answer yes to more than one of them, think about whether you can explain clearly to the court how your qualifications are directly


relevant to the methodology you may follow and the opinions on which you may testify. Some examples of recent decisions by United States Circuit Courts of Appeals1 on challenges to expert qualifications demonstrate the subtleties of having sufficient expertise.

“[A] district court acts properly by excluding opinions that are beyond the witness’s expertise.”

The First Circuit Agrees One’s Enough In Santos v. Posadas de Puerto Rico Associates., Inc., 452 F.3d 59 (1st Cir. 2006), the district court admitted a slip-and-fall expert’s testimony that defects with the stairs leading to a swimming pool led to the fall, despite his lack of experience in swimming pool construction or design. The expert – a mechanical engineer with practical experience analyzing roughly 2,000 slip and falls over more than 20 years - was certified by the National Academy of Safety in tribology (a branch of mechanical engineering on the study and application of friction and movement). On appeal, the First Circuit compared the expert’s qualifications with the FRE 702 criteria and affirmed the district court’s decision that the expert was sufficiently qualified. In its decision, the First Circuit noted that “the [qualifications] test is whether, under the totality of the circumstances, the witness can be said to be qualified as an expert in a particular field through any one or more of the five bases enumerated in Rule 702.” (Emphasis added.)

The First Circuit Limits the ScopeMeanwhile, the same circuit court addressed going beyond an expert’s expertise as a basis for limiting testimony in Levin v. Dalva Brothers., Inc.,

No. 05-2284 (1st Cir. 2006), a dispute involving the price paid for antiques. The district court limited the scope of the testimony of an appraisal expert who had conducted over 300 appraisals while employed as a furniture appraiser. The court allowed the expert to testify about his visual examination of an antique clock and its value, based on his general appraisal experience, but did not allow an opinion on the clock’s origin, finding the expert had “insufficient experience or training in authenticating” origin based on a visual examination. The First Circuit affirmed stating,

“[A] district court acts properly by excluding opinions that are beyond the witness’s expertise.”

The Fifth Circuit Says, “Who Cares if Your Expert is More Credentialed?”The sufficiency of an expert’s qualifications was reviewed by the circuit court as a basis for reversal in Huss v. Gayden, 571 F.3d 442 (5th Cir., 2009). The district court ruled that the defense expert was not qualified to render opinions on whether there was a link between the plaintiff’s subject heart condition and a particular drug taken during her pregnancy because he was not board certified in cardiology or toxicology, had no practical experience with the particular drug at issue, and was less credentialed than the plaintiff’s medical expert. The Fifth Circuit reversed, stating that the defense expert’s “training and experience as a medical professional [practicing internal medicine for 15 years and treating patients with heart conditions] qualified him to tell the jury why the [medical] literature does not establish a causal link” and that the expert’s “education and knowledge allowed him to form a reliable opinion as to whether” the drug caused the heart condition. Furthermore, the circuit court admonished the district court for comparing the qualifications of the two medical experts and using that as grounds for exclusion when “the most important question is not whether one

1 There are 13 U.S. Circuit Courts of Appeals, and each circuit court has decisions on expert admissibility based on qualifications. Similarly, within the 50 states, numerous appellate courts decisions and state supreme court decisions have been rendered on whether an expert is sufficiently qualified. Legal blogs, online legal journals, and other internet sites that pay special attention to decisions on admissibility of expert testimony provide summaries of these ruling, such as ims-expertservices.com/bullseye and federalevidence.com.


party’s expert is more qualified than the other’s, but rather, whether an expert’s testimony is reliable.”

Stretching Your Expertise after RetentionWhat if you are working on a case and the attorney identifies an opinion area that has yet to be explored. Instead of retaining another expert, the attorney wants you to opine on this topic in addition to the area for which you were originally retained, because it appears to be about something you likely already know and it will help that attorney minimize litigation costs. Consider whether you would be stretching your expertise by offering this opinion. As articulated by the Second Circuit, “[B]ecause a witness qualifies as an expert with respect to certain matters or areas of knowledge, it by no means follows that he or she is qualified to express expert opinions as to other fields.” Nimely v. City of New York, 414 F.3d 381, 399 n. 13 (2d Cir. 2005). The opposing side may take advantage of this weakness to challenge all of your opinions, even if some are entirely within your expertise. If that challenge is successful, at best only one of your opinions is excluded and, at worst, all of your testimony is excluded. Therefore, it is important to explain to the attorney the subtle yet important distinctions between your expertise and this other area. And, if you know of an expert in this subject matter, you can provide that name to the attorney. On the other hand, if you feel confident that this subject matter falls within your area of expertise, then go ahead and include this other topic in your opinions.

SummaryAttorneys will challenge an expert’s testimony if they can argue that an expert’s qualifications are not relevant to the opinion being proffered. The take-away from the examples above is that when you stay within your discipline, you will be sufficiently prepared to articulate how your knowledge, skill, experience, training, or education is sufficient and directly relevant to your opinion areas. Alternatively, if you accept retention on a case and you cannot demonstrate your expertise is directly relevant to your opinions, opposing counsel will attempt to expose your lack of qualifications in those opinion areas during your deposition, and you risk being excluded by a motion challenging the reliability of your expert testimony. Therefore, think through the list of questions provided above so you can make an informed decision on whether you are expert enough to take the case.


The Nuts and BoltsWhen it is time to demonstrate to the court that your methodology is both relevant and reliable beyond mere ipse dixit1 (loosely translated in the legal context to mean “because I said so”), it is important to consider whether your opinion or conclusion can be reached by using a methodology that adheres to the Daubert criteria or state variations. On the other hand, because the Kuhmo court granted judges “broad latitude” in applying any or all of the Daubert factors to an expert’s testimony, if the Daubert guidelines don’t directly apply to your experience- or training-based methodology, then you need to identify other ways of demonstrating the reliability of your method or technique.

Will your methodology be up to snuff? After considering whether you are sufficiently qualified to take the case, how can you evaluate if there is an appropriate methodology you can follow to analyze the facts? You should engage in discussions with the attorney to collect preliminary information. Drawing upon your knowledge and expertise, consider whether

you will be able to proceed from that data to an opinion. These are key questions to contemplate: ■ Is there a methodology you can use that

is either presented in peer-reviewed literature, consistent with formal training, or has acceptance in your profession?

■ Can you employ a methodology that you use in your professional practice that is based on sound principles?

■ If there isn’t a standard methodology, can you demonstrate the methodology you plan to use can be reliably used by others as supported by your observations, experience, or training?

■ Are there sufficient data and facts on which to rely in order to apply the methodology to the subject matter, or are the data and facts too sparse, creating an analytical gap too large to offer a reliable opinion?

■ If the methodology requires assumptions about the inputs, can you provide a well-reasoned explanation (e.g. based on experience or presented in literature) for the method of selecting those inputs?

METHODOLOGY

In the Daubert decision, the Supreme Court expressly stated that the focus of the inquiry into relevance and reliability “must be solely on principles and methodology, not on the conclusions that they generate.” 509 U.S. at 595. However, not all courts have exhibited that restraint and some courts have held that if the data or conclusions are unreliable, the expert’s testimony is unreliable and should be excluded. In Frye states, if the methodology is new or based on emerging science, courts look for objective validation that the method has acceptance within the relevant community to establish reliability.

1 In GE v Joiner, the Court held “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.” 522 U.S. 136 (1997).


■ Have others reached similar conclusions using a similar methodology with similar sets of facts or issues?

With those questions in mind here are three examples of recent federal circuit court decisions on challenges to the relevance and reliability of an expert’s methodology.

The 6th Circuit Minds the GapIn ASK Chemicals v. Computer Packages, Inc., No. 14-3041 (6th Cir. 2014) the circuit court considered whether there was “too great an analytical gap” in determining admissibility of expert testimony. In that case, the plaintiff’s expert was excluded from testifying on the amount of lost profits in a breach of contract dispute. The district court granted summary judgment in favor of Computer Packages, Inc. after excluding ASK’s sole expert witness on the basis of unreliable methods. The district court determined that although the expert “had sufficient specialized knowledge,” he had “based his calculations on fundamentally flawed data and impermissible methods.” On appeal, the Sixth Circuit affirmed the district court’s exclusion of the expert witness. The circuit court held that there was “too great an analytical leap” between the calculations the expert relied upon and the conclusion he reached because the expert had not independently verified the underlying data generated by the plaintiff. In sum, the court concluded that “given the unreasonableness of [the expert witness’] methods, the faulty and incomplete data upon which they were based, and the general unreliability of the evidence, the district court did not abuse its discretion in excluding [the expert’s] testimony.”

The 7th Circuit Permits Expert to Dodge a BulletIn this next case, the court also examined the underlying data in determining whether the trial judge properly excluded expert testimony for being unreliable. However, the Seventh Circuit’s decision in Manpower, Inc. v. Insurance Company of the State of Pennsylvania, 732 F.3d 796 (7th Cir. 2013) stands in stark contrast to the ASK court. In Manpower, Inc., the plaintiff’s forensic accounting expert opined on losses sustained from a business interruption. The district court excluded the accountant’s expert testimony, leaving the plaintiff without evidence on sustained losses, and leading the court to grant ISOP’s motion for summary judgment. Though the court concluded the expert had followed a reliable methodology to calculate losses – one that was required by the insurance policy – it took issue with the method the expert used in selecting the data to use in the calculations. The court determined that the expert’s analysis was unreliable because he used plaintiff-derived data without independently verifying the values. (Note the similarity with the ultimate conclusion in ASK). However, on appeal, the Seventh Circuit reversed the district court’s exclusion. It held that “[the expert’s] opinion—although not bulletproof—is sufficiently reliable to present to a jury and that in excluding [the expert’s] opinion, the district court exercised its gate keeping role under Daubert with too much vigor.” In its decision, the Seventh Circuit articulated the


same viewpoint it had expressed in prior rulings concerning abuse of discretion, reasoning,

“The district court usurps the role of the jury, and therefore abuses its discretion, if it unduly scrutinizes the quality of the expert’s data and conclusions rather than the reliability of the methodology the expert employed.”

The 11th Circuit Concludes It’s Not Quite a Carbon CopyIn United States v. Alabama Power Company, No. 11-12168 (11th Cir. 2013) the government alleged that Alabama Power’s modifications to its coal-fired power plants increased air emissions in violation of the Clean Air Act. The district court, relying on United States v. Cinergy Corp., 623 F.3d 455 (7th Cir. 2010), excluded the government’s power plant engineering expert for having an irrelevant and unreliable methodology and granted summary judgment in favor of Alabama Power2. In Cinergy Corp., the issue was whether modifications to a coal-fired power plant would increase pollutant emissions. In that case, the Seventh Circuit concluded the expert’s testimony was unreliable for failing to demonstrate that the methodology and resulting conclusion were applicable to the facts; and therefore not appropriate for the jury to consider. Because the facts, issues and expert opinion were similar, the district court in Alabama Power applied the same analysis used to exclude the power plant engineer’s testimony.

On appeal, the Eleventh Circuit reversed the district court’s exclusion. It found that the reliability of the testimony in the two cases was not identical. Whereas the expert in Cinergy Corp relied on mere ipse dixit; in Alabama Power, the expert provided the results of his engineering investigation to demonstrate his conclusion and underlying methodology indeed fit the facts of the case.

SummaryWhat is the take home message from these examples? Some circuit courts apply a narrow view of Daubert in abiding by FRE 702 and others are more flexible. Ultimately, there’s no prescribed formula for avoiding or successfully defeating a motion to exclude your testimony, but fortunately, courts tend to follow precedent. The outcome of an expert challenge can, therefore, be considered somewhat more predictable if there is established case law in a particular jurisdiction on which to rely. Once you know which jurisdiction governs the case you are considering, find out from the attorney if there is case law that the courts have applied to expert testimony in the areas in which you are an expert. With that knowledge, you can then make an informed decision on whether the methodology you plan to use is relevant and reliable. This exercise is valuable, not only for being prepared to defend an expert challenge, but also for maintaining a good relationship with the attorney who has retained you and for the possibility of future employment as an expert in your field.

2 While another federal circuit court’s opinion can be a resource for district courts that are not in that same circuit, it is not binding like opinions of the federal circuit court where that district court is found.


Answering the Who, What, When, Where, Why, and How

If the case is in Federal Court, your report must comply with Rule 26 of the Federal Rules of Civil Procedure (FRCP). This is the rule that requires opposing parties to disclose to each other the identities of the expert witnesses each may use at trial, and accompanying the disclosure is a written report prepared and signed by the expert. You may hear the retaining attorney refer to your expert report as a “Rule 26 report” because the information required in your report is listed in Rule 26(a)(2) - Disclosure of Expert Testimony.

The FRCP Rule 26 report requirements are not meant to be a checklist for a Daubert-proof report; in fact the word “methodology” doesn’t even appear in the list. The rule exists to ensure opposing parties disclose sufficient information about their experts so that each side can prepare for cross examination of each other’s experts in deposition or at trial. Most state courts have adopted similar guidelines, and if your case is in state court, check with the attorney on what the specific report requirements are for that jurisdiction.

THE EXPERT REPORT

You have been retained on an exciting case and depending on your field of expertise, over the past several months you have reviewed documents, surveyed the literature, attended site visits, completed inspections, conducted interviews, examined patents, conducted experiments, analyzed data, performed calculations, or ran computer simulations. Whew! You reached your conclusions, and you are ready to draft the expert report.

Generally speaking, a Rule 26 report must contain the following information (adapted from Rule 26(a)(2)(B) as amended in 2010):

i. a statement of your expert opinions, and the basis and reasons for them;

ii. the facts or data considered in forming your opinions,

iii. any exhibits (charts, figures, diagrams) used to summarize or support your opinions;

iv. your qualifications and authored publications from the past 10 years;

v. your case history for the previous 4 years in which you testified in deposition or trial; and

vi. compensation for the work you have done since retention including testifying

Can you write a Daubert-proof report? The simple answer is “no.” Can you write an expert report to make it challenging for the opposing side to prepare a motion to exclude your testimony and thus minimize the potential for a successful challenge? The answer to that question is “yes!” The following discussion presents suggestions on what to include in your report, using the Rule 26 requirements as a template.


Qualifications & PublicationsTo comply with Rule 26, attach a current CV or resume to the end of your expert report. Though this document typically contains a listing and brief descriptions of your professional achievements and a listing of your published articles, by itself it doesn’t necessarily explain to the court who you are, e.g. the “knowledge, skill, experience, training, or education. . .” (FRE 702) you have that is directly relevant to your role as expert in this case. Therefore, expand on pertinent information presented in your CV or resume in the body of your expert report. Items to consider include: ■ Describe how your academic training

provides knowledge in the subject areas upon which you are opining. Recall the Huss case (see pg 11) in which the court admitted the medical expert in part because his education was sufficient to render an opinion after reviewing the medical literature.

■ Provide examples of the projects, tasks or responsibilities that contain elements relevant to your litigation work, and if the experience is substantial, quantify the experience. Recall the Santos case (see pg 11) in which the court was impressed that the mechanical engineering expert had analyzed 2,000 slip and falls and admitted his testimony.

■ Explain what your certifications, licenses or trainings provided in terms of specialized knowledge or skills if you relied on any of those in your litigation work. Recall that the Santos court also referred to the expert’s certification in a relevant discipline as a basis to admit his testimony.

■ In addition to listing your publications on your resume, identify any specific publications you authored if you followed the same or similar methods of inquiry and reached similar conclusions in your litigation work.

■ Identify presentations given at workshops or conferences if the topic is related to the work performed in reaching your opinions.

■ The “Qualifications” section of your report is your first opportunity to demonstrate you are sufficiently qualified. Even if you did something only a few times, if it was done outside of litigation and is relevant, include a detailed description of that work.

Case HistoryFor Rule 26 purposes, attach a list of the cases in which you testified as an expert at deposition or trial in the past 4 years. The listing should be similar to the case style: Plaintiff v. Defendant, Case No., and Jurisdiction. You may choose to include the type of testimony (deposition, trial or both) and the date of your testimony. Recall from earlier in this publication that judges tend to consider prior decisions made by the same or even other jurisdictions involving a similar set of facts (including admissibility of expert testimony). Therefore, in your “Qualifications” section you can elaborate on your role in any of those cases in which you were qualified by the court if they cover similar issues and you gave similar opinions.

Your Expert OpinionsWhen formulating your opinions, it is extremely important to talk with the retaining attorney on what language to include or to avoid. Because your opinions will correspond to either the claims or the defenses, you may need to include certain language for the legal team to show the court that there is evidence, in the form of expert testimony, to support their side’s argument. From a Daubert perspective, your opinions need to logically flow from the work you conducted during your retention and therefore should be expressed to convey that to the court.


The Basis for Your OpinionsIn your expert report, a statement explaining the basis of your opinions typically precedes your statement of opinions and your reasons. For example, you may say, “I have formed my opinion(s) based upon documents supplied through discovery, peer-reviewed literature, industry standards, site visits and interviews, and my training, experience and education.” This statement then provides the foundation for the methodology and what facts or data you considered in forming your opinions.

The Reasons for Your OpinionsThis is the “nuts and bolts” or “Methodology” section of your report. It explains to the court exactly what you did, how you did it, and why. This is your opportunity to describe to the court the guidelines, methods, procedures, principles, protocols, analytical processes, mathematical models, standards or techniques you employed or followed in order to reach your conclusions and formulate your opinions, and why these tools were appropriate for the set of facts, issues or circumstances in the case. Even the simplest of methods utilized needs to have justification. You can also refer back to your “Qualifications” section to explain what aspects of your professional background were used in selecting your methodology and in understanding its applicability to the current case. Also, you can summarize work from prior cases listed in your case history in which you used the same or a similar methodology, and the court admitted your testimony. Remember, in order for your expert opinions to be admissible at trial, your underlying methodology must be robust enough to withstand a Daubert challenge and scrutiny by the court. It is essential that your expert report clearly conveys that your methodology is reliable

– generally speaking, it is accepted within your field or profession or can be objectively validated, and your methodology is relevant – generally

speaking, it is closely related to both the facts and your conclusions or opinions. When drafting your report, review both FRE 702 and the Daubert factors and find a way to describe your work in terms of those criteria. Judges look for straightforward comparisons between an expert’s work and the admissibility criteria on which they rely in determining whether to admit their testimony.

The Facts or DataYou are required to identify the materials you considered and/or relied upon in forming your opinions. You need to include enough information to allow the opposing side to obtain those materials or request them from you. For example, include the Bates number and date for discovery documents, the full reference for publications, or the title and the date of any site visits, interviews, investigations or examinations. You can provide this information by attaching a separate list at the end of your expert report. Alternatively, you can embed citations or footnotes directly into the body of your report.From a Daubert perspective, some courts consider an expert’s choice of data or facts when evaluating the reliability of expert testimony, even though the Daubert court explicitly indicated the underlying data isn’t supposed to be evaluated by the court. Therefore, clearly explain your approach for selecting the data on which you relied. For example, if there were facts or data you considered and discounted, you will want to explain the reason for not relying on that


information to show that you didn’t “cherry pick” the data in support of your side’s arguments. Maybe the information wasn’t supported by any other sources, or maybe there was contradictory evidence that had more credibility, or maybe there were gaps in the data.If you collected and analyzed your own data, explain how you validated the data – again referring to the Daubert factors for guidance. Similarly, if you used data provided to you by the retaining side, explain how you independently validated the information. Recall the ASK case (see pg 14) in which the circuit court upheld the trial court’s exclusion of the expert based on unreliable methods stemming from unverified data.

ExhibitsIf you generated any charts, figures, tables, diagrams, etc. to support your expert opinions, those graphics need to be included either as an attachment or embedded in your report. From a Daubert standpoint, if you are using a graphical representation of your analysis, ensure it is presented clearly, and permits the court to visibly understand how your opinions are a direct result of your methodology.

CompensationRule 26 requires a statement of the compensation you received for your work and testimony. Confirm with the retaining attorney (and the expert provider company if you are working with one) how you should handle disclosing rate information. Typical disclosures

include a fee schedule, or a sentence stating an hourly rate. You may need to estimate compensation for testimony you have yet to offer. Also, at the time of disclosure you may need to provide invoices detailing fees and expenses for your services. Do not be embarassed or concerned about your compensation. A Daubert motion cannot be based on how much money you received and courts do not expect experts to conduct research or testify for free.

SummaryRule 26 requires opposing sides to divulge all of their evidence, including expert testimony, so there are no surprises at trial. Therefore, the expert report must be a complete statement of everything the expert intends to say on the witness stand. Based on the exchange of information, a settlement may be reached before trial – a scenario preferable by courts with full dockets. However, this exchange may also lead to motions to exclude experts and to dismiss the case. Therefore, the expert report (and subsequent deposition) has even greater importance to an expert and the case. When writing your Rule 26 report, consider the above suggestions on how to demonstrate your qualifications and testimony meet FRE 702 and Daubert. The courts are very clear that attorneys must have a legitimate basis to file a motion to exclude expert testimony – not solely on the grounds that your opinion differs from their expert’s opinion, or their expert has more years of experience than you.


What You Say and How You Say It Matters

Opposing counsel will ask a series of questions to explore your qualifications, methodology and opinions to learn how strong of an expert you are (or aren’t) and to expose any deficiencies (if there are any) in your work. While you are answering, opposing counsel is watching and listening to your responses to gauge how likeable you will be to a jury, how you handle yourself under fire, how persuasive your testimony is, and how strongly you can defend your opinions.

After reviewing your deposition transcript or watching your videotaped deposition, the opposing side may concede your side’s view of the case is stronger than theirs and propose settlement, or the opposing side may determine it has plenty of ammunition to file motions both to exclude your testimony and to dismiss the case. Obviously, your deposition cannot be taken lightly, but there’s no need to dread it if you are sufficiently prepared and knowledgeable on what to expect – especially from a Daubert perspective.

EXPERT DEPOSITION TESTIMONY

After many attorney communications, and hours of writing, editing and refining, your expert report has been filed. You are proud of your work product and are ready to take a break. Not so fast! Your deposition is coming up and you will need to be ready. The expert deposition is one of the most important milestones in the discovery process because it gives the opposing side an opportunity to evaluate the strengths and weaknesses of your testimony and the case in general. You may not realize it, but your deposition can and probably will influence the outcome of the case before it ever goes to trial.

Attorneys have different styles when taking depositions: ■ the aggressive attorney with a

confrontational demeanor always trying to keep you on edge

■ the conversational attorney with a personable demeanor that wants you to keep on talking and talking

■ the attorney that bounces back and forth to catch you off-guard once you are feeling comfortable.

Regardless of which approach they use, their goal is the same – to gather sound bites for a Daubert challenge.

Prior to your deposition, opposing counsel and its retained expert(s) will have reviewed your expert report attempting to identify any flaws, and will prepare deposition questions on those topics to challenge in a motion to exclude your testimony. Therefore, it is extremely important that you carefully review your expert report and all of


the information you considered or relied upon in forming your opinions. If you cited several publications and only used a section or two from each, be familiar with the entire article to know if there is anything written that is contradictory to your work. You can be sure the opposing side will find those statements and ask you about them.It is also important, that you are well versed in your methodology – what you did, why you did it, and how it fits with the issues in the case

– because the attorney may frame questions about your methodology around the Daubert factors. For example, you may be asked what the error rate is, or could you calculate an error rate; has your methodology been published or would you publish it; what are the authoritative bodies in your field; and does your method have acceptance within that community?If you discounted any facts or data, or chose to use a particular method over an alternative, be prepared to testify to the same explanation provided in your report. However, if you did not include a reason in your report, then practice articulating an explanation that is clear and concise. If your answers to questions about your data or method selection implies that you

“cherry-picked” only the data or method that supported your opinion and ignored information that was contrary, opposing counsel will use your admissions to show an “analytical gap” problem and argue your methodology is unreliable in a motion to exclude your testimony under FRE 702 or similar state rule.Also, upon reviewing your report, if you find any mistakes in your work, whether big or small, alert your attorney to strategize on how to handle any errors during your deposition. Keep in mind, the opposing attorney is looking to capitalize on any mistakes you made and will use your testimony at deposition to support a Daubert challenge. Even if you are highly qualified to testify on the subject areas in your report, expect questions about your expertise anyway. Attorneys sometimes use the tactic of rapid fire questions

on areas that you might not be qualified in or on topics you might not know about to elicit a series of “no” answers from you. Don’t get caught up in the fast pace. Pause to think about what your answer will mean. You don’t want to limit your expertise such that suddenly an area of inquiry in your expert report falls outside of your qualifications. The opposing side is looking for sound bites to use in a Daubert challenge and your own testimony is the strongest evidence.Practice, practice, practice! Go over points of concern with the attorney and run through mock deposition questions with the attorney or someone knowledgeable in your field or on the case. Also, ask the attorney for information on what the deposing attorney’s style and demeanor are so you can prepare in advance on how to answer questions.

SummaryYour deposition is an extremely important part of the discovery process because your testimony can influence the strategy of the case moving forward. Even if you have a very strong expert report, if your testimony exposes any weaknesses in your qualifications, methodology or conclusions, you can bet opposing counsel will use your testimony in support of a motion to exclude you. By knowing that the opposing attorney’s deposition questions are intended to help frame a challenge to your testimony, you can prepare in advance on how to answer questions about your work without providing sound bites, limiting your qualifications or weakening the reliability of your methodology and opinions.


RESPONDING TO THE MOTION

The motion to exclude is written in such a way to explain to the court that you are not qualified and/or that your expert testimony is not reliable nor relevant. The opposing side will establish the legal basis for challenging your expert testimony by citing FRE 702, Daubert, and perhaps Joiner and Kumho, if the case is in federal court, or the relevant state “rules of evidence” and a precedent-setting case on admissibility of expert testimony if the case is in state court. The motion will then have a background section presenting the case issues and underlying areas on which you are testifying. This section is to educate the court on what the case is about from their point of view. The third part of the motion is the most significant – it presents the challenges to your opinion citing excerpts from your expert report, testimony from your deposition and case law where the court excluded expert testimony where similar issues were in dispute.

As discussed in Chapter 5, during your deposition, the opposing attorney will have

spent a lot of time questioning you about your professional history seeking possible deficiencies or discrepancies with your resume to establish you are unqualified to render some or all of your opinions. The motion to exclude also may challenge your lack of real world and non-litigation experiences if your primary work experience is in an academic or laboratory setting. Similarly, the motion may challenge your lack of scientific knowledge if your specialized knowledge was obtained through on-the-job training. Each argument will cite case law in which an expert was excluded for lacking the requisite qualifications to render his or her opinions. The opposing side will also attempt to challenge your credibility by citing any cases in which your testimony was excluded, even if those cases are not relevant to your opinions in this case.Typically, the challenge to your opinions due to any methodological flaws will comprise the bulk of the motion. The opposing side may argue that you did not have sufficient references to justify the use of your methods, or attempt to establish that a better, more appropriate methodology was available, like the one used by their expert. They may also attempt to show that your assumptions, inputs or selection of

MOTION TO EXCLUDE

The motion to exclude your expert testimony has arrived. Take a deep breath, and read the document. You may feel the need to shake your fists, yell loudly, or stamp your feet. It is not unusual to be angry upon reading a harsh critique of your hard work and your professional experience. When your anger subsides, review the motion again, this time taking notes on important points that you feel need to be addressed in the legal team’s response or in your affidavit.


data were flawed, insufficient, or subjective. For example, if you excluded data or facts and did not provide a sufficient explanation in your expert report or during your deposition, the motion will argue your opinions are subjective and therefore, unreliable under FRE 702(c) and not helpful to the jury. If you are relying on data or information that you personally collected, the motion will assuredly contain arguments that your procedures were improperly conducted under conditions that did not mirror the “real situation.”

Striking BackThe legal team takes the lead responding to the motion to exclude your testimony. They are responsible for rebutting the legal arguments. They review the body of case law cited in the motion and argue that the judge should not abide by those court decisions because the facts and circumstances are dissimilar from the present case. They will then cite case law that is favorable to the case and to your expert opinions and argue that the judge should rely on that case law instead.Your responsibility is to rebut each and every claim in the motion to exclude your opinions. Start by reviewing your expert report and deposition testimony to locate what excerpts or sound bites the motion used – maybe they were taken out of context, snipped to cut off your full answer or a misinterpretation of what was stated in your report. Next, communicate your points to the legal team so they can strategize with you on their response.They will decide whether you should prepare a detailed affidavit that will be attached to their response, or included directly in their response. Also, if you were qualified to testify in cases involving similar issues, make sure the legal team is aware of those cases. Provide the attorney with any written decisions by the courts denying motions to exclude your testimony if they are in your possession.

“…communicate your points to the legal team so they can strategize with you on their response.”

The HearingA hearing or “mini-trial of the experts” will be held either with or without the experts testifying. The judge has the authority to conduct a hearing with only the attorneys for both sides arguing the motions and responses, or the judge can request that certain experts appear in court for the hearing, which is essentially another cross examination.If you are called upon to testify, you must be totally prepared to address all aspects of your opinions challenged in the motion to exclude. The opposing attorneys have read in scrupulous detail your rebuttal and will decide which opinions to argue in court, and may also find different avenues of attack. Also, be knowledgeable of the opposing expert’s opinions. You may need to show where there is agreement, and where there is disagreement between your work and the opposing expert’s methodology and why your testimony should be admitted despite conflicting opinions. There are always unexpected questions that you will have to handle on the spot, including questions directly from the judge. The retaining attorney will also have an opportunity to ask you questions. He or she may want you to clarify your earlier responses or give you another chance to explain how you are sufficiently qualified and explain that your methodology is both reliable and relevant. If you are not testifying at the hearing, then you are relying on the legal team to fight on your behalf. It is up to them to clearly and concisely rebut the challenges to your testimony to the judge. Therefore, it is critical that the attorneys fully understand your methodology – what you did, why you did it that way, and how it is


applicable to the case – and fully understand how you formed your opinions based on that work. Without your testimony, the next best thing is your affidavit, which addresses the important points you want the judge to understand.

The judge will make a decision based on your ability to convey in clear and concise language your methodology and your opinions and why both are valid. In general, judges are predisposed to accept expert opinions unless there are unexplained red flags that allow the other side to provide convincing arguments to the contrary. Judges may use Daubert and the other precedents to assist in their decision on admissibility, and most importantly, they need to demonstrate they reached their conclusion using sound, reasonable and legal decision-making skills in order to pass an abuse of discretion review if the decision is appealed. The attorney has the right to appeal the judge’s opinion; however, the bar is set high for the appeals court to overturn a judge’s decision to exclude. The “abuse of discretion” standard means that a judge can make errors in judgment as long as the errors do not exceed the “abuse” threshold. Judges are human and do make mistakes. You can be excluded for what you and the attorney consider illogical reasons. Just like in baseball, you are going to have a called third strike that is outside the strike zone every now and then.

The AppealIf the retaining attorney either is considering or chooses to appeal the judge’s decision to the higher court, you will need to assist in the process by carefully reading the judge’s opinion to determine if errors in interpretation and judgment have been made. The examples of circuit court opinions cited early on demonstrated that the circuit court’s role is limited to evaluating whether the trial court

“abused its discretion” when considering whether to overturn a judge’s decision. This is a high hurdle to overcome, but not an impossible one if indeed significant erroneous interpretations of your qualifications or methodology were the basis of the Daubert exclusion. SummaryThere is nothing more critical than successfully defeating a motion to exclude your testimony and being able to testify in court as to your opinions. In civil proceedings, most cases settle prior to trial. In essence, the Daubert hearing can be the deciding milestone for both sides. Experts have a unique status in litigation as being able to explain in detail their versions of the case issues. That is why the motion and the response are so important, vigorous and challenging. Your reputation is at stake.


THE COURT HAS SPOKEN: YOU’RE IN OR YOU’RE OUTWhat next? Regardless of whether the case goes to trial, settles or is dismissed, what are the implications for future cases? Depending on the outcome, there are different ways to strategically maximize or minimize the impact of a decision on a motion to exclude your testimony.

The Favorable OutcomeCongrats! Your testimony was admitted. How can you use this decision and other favorable ones to your advantage in the future? First, make sure you obtain and maintain an electronic record of favorable decisions so you can easily refer to these documents at a later time. For example, you can use the court’s ruling to quickly summarize and promote your expertise and your strengths to potential clients, and you can use the language delivered by the court if you need to defend your testimony in future cases. Imagine you are hired to testify in a case about X. You have been qualified by the court and testified about X before – maybe not just once, but several times. In this case, a motion is filed to exclude your testimony. In your affidavit or in the attorney’s response, include a summary of your role in those cases about X in which you successfully beat a Daubert challenge

to demonstrate you have been qualified in the same opinion areas, and the court found your testimony to be relevant and reliable. As stated many times before, the courts consider precedent when making decisions on whether to exclude expert opinions and therefore may rely on this information when deciding whether to admit your testimony in the current case. Likewise, keep track of those cases in which you testified at trial and no challenges to your testimony were filed, because they lend support that your qualifications and methodology are admissible.

The Unfavorable OutcomeUnfortunately, your testimony was excluded under FRE 702. It’s hard not to take the news too hard. How can you minimize the fallout?First, assess the damages. Will you still be able to testify in trial? If your opinions were admitted in part, then your limited testimony may still be valuable to a jury and you may be able to testify. However, if all of your opinions were excluded, then you cannot testify, but it doesn’t mean the case is over if the attorney decides to continue to trial. Also, find out whether the attorney intends to appeal the decision; but don’t be surprised if no appeal is filed. The legal team will make its decision based on case law for that jurisdiction, case strategy and litigation costs,

COURT DECISION

The dust has settled: a motion to exclude your testimony was filed, your opinions were defended to the best of your ability and the retaining attorney’s ability, and the court made its decision to admit or exclude your testimony.


and not necessarily to protect your reputation. Sometimes both sides will reach a settlement to avoid the lengthy and costly process of an appeal. Second, make sure you fully understand the basis for the court’s decision on your exclusion. Read through the decision to determine which of the following applies: ■ Were your qualifications insufficient? ■ Were you qualified but your methodology

was found to be unreliable? ■ Was your methodology reliable but it did

not fit the facts of the case? ■ Was your testimony limited in scope, or

was your full testimony excluded? ■ Was your methodology or conclusion

based on another expert’s conclusions and that expert was excluded?

Comprehending why your testimony was excluded will help you with future cases. First, you can treat it as an opportunity to learn from the experience. What went wrong? Can you better present your qualifications, methodology, or opinions in the future? Were you under prepared for your deposition and gave the opposing side too many sound bites in your testimony? Furthermore, understanding the decision will allow you to distinguish the issues and underlying basis for your exclusion so you can concisely present the circumstances to future clients. You can’t hide successful challenges to your testimony – they certainly will be uncovered – but you can explain away some of the negative association. For example, the potential case may involve issues that are unrelated to the issues in which your testimony was excluded. Or, the case issues have some similarity, but the prior case had less data or facts for you to work with. There also may be times when your testimony appeared to have all the correct elements, and yet a challenge was successful. Do not assume that one exclusion means you can no longer testify as an expert witness. Attorneys

understand that sometimes judges are not perfect, and they also know that all jurisdictions are not alike – both in terms of the case law and

in their scrutiny of experts. The opposing side will always raise the topic of any past Daubert exclusions during your deposition. Using the same suggestions described above for handling questions from a potential client, you can minimize the impact in deposition by distinguishing that past case from the current one. Also, you can respectfully disagree with the outcome, but make sure to thoroughly explain why. Expect this line of questioning in advance of your deposition, so you can practice your responses. This will help you maintain your emotions and give concise answers.

Summary In the course of an expert’s career an unfavorable outcome is neither unusual nor unexpected – motions to exclude expert testimony are filed in nearly every case in which the stakes are high. That said, the court’s decision is by no means benign and it is important you have a strategy to minimize the impact in future cases.


When experts are needed because their specialized knowledge will assist the jury with understanding key issues in a case, the admissibility of expert testimony is crucial. Attorneys know that if their expert is excluded, their case is in jeopardy of summary judgment, a disappointing settlement, or an unfavorable jury verdict. Experts must also understand that if their testimony is excluded not only can the ruling jeopardize the outcome of the case, it can affect their role in future cases. It is quite common for attorneys to file motions to exclude the opposing party’s expert witnesses to eliminate expert testimony from the jury’s consideration. Depending upon whether the case is in federal court or state court dictates whether the motion is filed based on FRE 702 and Daubert, or a state’s own variation of FRE 702 and Daubert or Frye.This resource was written to help experts be mindful of Daubert, or a state’s own variation of Daubert or Frye throughout the litigation process. Key points were: remember to only accept cases that you are qualified for, ensure you have a sound methodology on which to form your opinions before proceeding, know how to clearly articulate that you are sufficiently qualified and that your methodology is relevant and reliable, and work closely with the retaining attorney to respond to a motion to exclude your testimony. Following these strategies will challenge the opposing party in its preparation and defense of a motion to exclude, and will assist the judge in understanding how you meet the admissibility requirements. You don’t need to fear Daubert if you are sufficiently prepared to uphold your role as an expert witness within the framework of the admissibility rules.


CONCLUSION

ABOUT THE AUTHORWendy Pearson, founder of Pearson Research Group, has more than 15 years of experience providing strategic litigation support and expert witness support on over 50 major cases involving contaminants in the environment. She assists attorneys with case assessments, case strategy, understanding technical issues, fact and expert witness discovery, Daubert motions and responses, and direct and cross exams of experts at trial. Wendy provides expert witness training and fully supports expert witnesses throughout the litigation process to ensure high quality work product and sufficient preparation for deposition and trial. She holds a B.S. in Civil Engineering and a M.S. in Environmental Science and Engineering.

ABOUT IMS EXPERTSERVICESIMS ExpertServices is the nation’s premier provider of experts and consultants for

top law firms and Fortune 1000 companies. We excel at custom search, connecting elite industry experts with attorneys in the midst of high-stakes business litigation. By

focusing on this niche legal market, we are able to find more qualified experts in less time than it would typically take an attorney. Since its inception in 1992, IMS ExpertServices has been delivering hard-to-find subject matter experts to attorneys at top law firms.


Documents

What to Expect When You’re an Expert...You may be the expert in your field, but if you fail to understand how the rules on admissibility of expert testimony may affect your opinions