Expert Witnesses 101

1. Expert Witnesses 101 Michael J. Farrell Farrell, Farrell & Farrell, L.C. Huntington, West Virginia http://f3.farrell3.com

2. http://f3.farrell3.com.\evidence This power point presentation will be available for downloading on Tuesday, September 27, 2005 at this address.

3. The Impact of an Expert “An expert witness has the potential to be both powerful and quite misleading.” --Daubert

4. Bottom Line of Daubert/Gentry The issue under a Daubert/Gentry analysis is not whether the expert opinion is correct; rather is it reliable. See TFWS, Inc. v. Schaefer,325 F.3d 234 (4th Cir. 2003)

5. One Missed Step Is Enough • “Any step that renders the analysis unreliable…renders the expert testimony inadmissible.” • “This is true whether the step completely changes a reliable methodology or merely misapplies that methodology” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3rd Cir. 1994)

6. Rule 702—Federal and State Rules Are Different If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to 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 opinion or otherwise, if (1) the testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods and (3) the witness has applied the principles and methods reliably to the facts of the case.

7. Gentry Analysis Begins Before You Retain An Expert Witness • What issues need unavailable factual testimony that will assist the trier of fact. • What is the relevancy of the proposed expert testimony • What is the reliability of the proposed expert testimony • What does my client/insurer get for the money paid to the expert

8. Issues The Need Experts • Duty • Breach of Duty • Proximate Causation • Damages

9. Examples of “Duty” Experts • Medical Malpractice----defining the standard of care • Product Liability----defining the duty of a reasonably prudent manufacturer regarding manufacturing quality control, design alternatives and adequacy of warnings • Plaintiff’s Conduct----e.g. in a medical malpractice case testimony regarding the duty of the patient to follow instructions, provide an accurate and complete history and/or take medications

10. “Breach” Experts” • Malpractice----explain how the physicians’ conduct did not comply with the standard of care • Product Liability----identify the product manufacturing defect, defective design and/or defective warning • Plaintiff’s Conduct----explain what a reasonably prudent patient should have done in the same or similar circumstances

11. “Causation” Expert Witnesses • Probably the most important need in a vigorously contested case • Affirmative and negative obligations • Affirmatively must connect the dots from “duty” and “breach” to “a proximate cause” • Negatively must debunk, discount and/or destroy the defense that something unrelated to his client’s conduct was the proximate cause • Plaintiff’s Conduct----explain the unreasonableness that it could be a proximate cause and/or that a reasonably prudent person would have done it

12. “Damages” Experts • Mental and Physical Health----preference is treating physician so long as he or she is supportive • If treating physician is not supportive, an expert is needed • Specialized experts for future damages----must prove permanency of injury and reasonable certainty of damages to occur • Economist • Vocational specialist • Life care Planner

13. Selecting the Expert • Know and narrowly define the field of expertise • Search the relevant professional literature to identify the de facto leaders in the field • Investigate the potential leaders in the field • Solicit resumes • Check references with other lawyers, judges, court personnel • Collect deposition and trial transcripts • Check computerized indicies • Google the witness • Lexis the witness • Westlaw the witness

14. Evaluating the Potential Expert • Scientific,Technical or other Knowledge that Qualifies the Witness pursuant to Daubert, Kumho, and/or Gentry • Testimony must be relevant • Testimony must be reliable • Communication skills • Work Ethic • Physical Appearance • Listening Skills

15. The Rule 26 Expert Report and State Court Rule 26 Disclosure • Identify the field of expertise • Identify the training, education and experience that qualifies the expert to testify • State the opinions • State the predicate facts relied upon • If the opinions of an adverse expert are addressed directly, quote the predicate opinions • State compliance with the admissibility evidentiary admissibility threshold e.g. reasonable degree of medical probability, reasonable degree of medical certainty

16. Motion in Limine • Identify each expert to be challenged • Identify the legal basis for the challenge: • Relevancy • Reliability • Both • Identify the factual basis for the challenge: • Identify the Daubert principle that is violated • Explain the application of the rule, standard of scope of research that should have been performed and the prejudice caused by admitting it now.

17. Rule 104(a) • Federal and State Rule Identical • “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court….”

18. Qualifications & Relevancy—Conduct a Mock 104(a) Exam • Test the Qualifications of the Witness • Education, experience or training in a field that is relevant • to the issue presented and • that will assist the trier of fact • Match and Compare the Qualifications with the Actual Opinion Proffered • Expert may be qualified in some field—is it this one

19. Reliability—The More Difficult Rule 104(a) Hurdle • Is the reasoning and methodology underlying the opinion scientifically valid • Focus on the principles and methodology not on the expert’s conclusions. • Falsifiability—theory tested or capable of being tested • Peer reviewed and published • Known or potential error rate • Existence and maintenance of standards for the methodology • General acceptance in the relevant scientific community

20. Reliability—Medical Diagnosis • What is the standard medical practice for diagnosing the disease? • For the actual diagnostic testing, who established the criteria—lawyers or physicians? • Training of people taking histories and/or performing tests • Performance and legal compliance of testing device e.g. American Thoracic Society standards for a spirometer (Ecodes); governmental testing of an x-ray machine.

21. Reliability Tests Beyond The Express Holding of Daubert • Economic incentives e.g. pay v. no pay for favorable silicosis opinions. In re Silica Products Liability Litig., 2005 WL 1593936 (S.D. Tx. June 30, 2005) See also Allison v. McGhan Med. Corp., 184 F.3d 1300, 1321 (11th Cir. 1999); Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194, 197 n.3 (5th Cir. 1996).

22. More Reliability Tests Beyond Text of Daubert, p. 2 • Toxic Exposure Cases— • Medically Untrained Personnel (lawyers and temps) took medical histories that were used by physician who made the ultimate diagnosis. In re Silica Products Liability Litig., 2005 WL 1593936 (S.D. Tx. June 30, 2005) Consider also: Rule 703—“…facts on which expert relies must be reasonably relied upon by other experts in the field.”

23. More Reliability Tests Beyond Text of Daubert, p. 3 • Toxic Exposure Cases: Insufficient data regarding: • Dosage of harmful toxic substance • Duration of exposure to harmful toxic substance In re Silica Products Liability Litig., 2005 WL 1593936 (S.D. Tx. June 30, 2005) See also Christopherson v. Allied-Signal Corp., 939 F.2d 1106, 1114-15 (5th Cir. 1991)

24. More Reliability Tests Beyond Text of Daubert, p. 4 • Diagnoses resulting from “mass screenings” • “…the screening business was competitive, without large numbers of positive diagnoses, the screening companies would lose money or would lose the law firm account to a competitor.” • These were “legal diagnoses”, not “medical diagnoses.” In re Silica Products Liability Litig., 2005 WL 1593936 (S.D. Tx. June 30, 2005)

25. Exception to Daubert Validation • Generally accepted and tested within our adversarial system over time. • Fingerprint identification* • Handwriting analysis* *See United States v. Crisp, 324 F.3d 261 (4th Cir. 2003) (King, J.) (Dissent; Michael, J. Daubert did not approve acceptance by the legal community as a substitute for acceptance by the scientific community)

26. Generally Accepted that it be Excluded Without Daubert • Polygraph—Per Se Rule of Exclusion Challenged See United States v. Prince-Oyibo, 320F.3d 494 (4th Cir. 2003)(Hamilton, Senior Judge, dissenting)

27. Within the Abuse of Discretion • Excluded because it would not have been helpful to the jury • Excluded because it was not beyond the common experiences of the jury • Excluded because underlying research examined the occurrence of the wrong tumor • Excluded because alleged proof of does response relationship was unreliable

28. Establishing Abuse of Discretion in Admitting Expert Testimony • Double Standard • Wrong Application

29. Lay Witness Opinion Testimony • Authorized by both Federal and State Rule 701 • Scenario #1: When witness’ personal knowledge is used to authenticate or identify something that otherwise would be established by expert proof e.g. handwriting, voice identification • Scenario # 2: When a lay witness’ experience when combined with personal knowledge provide the basis for the expression of a Rule 702 expert opinion e.g. truck design opinion from former truck mechanic and service manager

30. Helpful Sources For Assessing Daubert/Gentry Issues • Cleckley, Handbook on Evidence for West Virginia Lawyers, Fourth Edition—Lexis Publishing • Robin Jean Davis, Admitting Expert Testimony in Federal Court and Its Impact on West Virginia Jurisprudence, 104 W. Va. L. Rev. 708 (2002) • Reference Manual on Scientific Evidence—West Publishing Company • Manual For Complex Litigation Third—West Publishing Company

31. http://f3.farrell3.com\evidence his power point presentation will be available for downloading on Tuesday, September 27, 2005 at this address