Are You Ready to Serve as an Expert Witness?

The Question of Admissibility (Part III of VII)

Are you ready to serve as an expert witness? Your training and experience are critical factors establishing your qualifications, but not a license to testify on matters beyond your scope of expertise. In this article, the author shares her experience evaluating your admissibility as an expert.

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.

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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 expert 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?  Ask yourself the following questions:

• Does your academic background indicate 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 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 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 Appeals^[1] on challenges to expert qualifications demonstrate the subtleties of having sufficient 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 the testimony of a slip-and-fall expert 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, “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 Scope

Meanwhile, 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 Smarter?”

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

Stretching Your Expertise After Retention

What 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.

Summary

Attorneys 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 opinions 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.

This article originally appeared on IMS-ExpertServices.com in the Expert Library on May 20, 2015.

[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.

Wendy 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. Ms. Pearson 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.
Ms. Pearson can be reached at (814) 240-2418 or by e-mail to wnpearson@pearson-rg.com.