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EXPERT WITNESSES AND RELATED DISCOVERY AND ETHICAL ISSUES

EXPERT WITNESSES AND RELATED DISCOVERY AND ETHICAL ISSUES. DISCOVERY ISSUES. Party must disclose identity of each person that a party may call at trial

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EXPERT WITNESSES AND RELATED DISCOVERY AND ETHICAL ISSUES

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  1. EXPERT WITNESSES AND RELATED DISCOVERY AND ETHICAL ISSUES

  2. DISCOVERY ISSUES

  3. Party must disclose identity of each person that a party may call at trial Written report must accompany disclosure if (a) witness is “retained or specially employed to provide expert testimony” or (b) witness’s duty as a party’s employee involves regularly giving expert testimony Report must contain: (1) opinions + basis, (2) facts or data considered, (3) summary or supportive exhibits, (4) qualifications + list of publications in last 10 years, (5) compensation, (6) list of all cases in past 4 years in which the expert testified FEDERAL RULESFed. R. Civ. P. 26(a)(2)Fed. R. Civ. P. 26(b)(4)

  4. Party must disclose (upon request in interrogatories) identity of each person a party expects to call at trial No written report from the expert is required Disclosure must contain (1) subject matter of testimony, (2) substance of facts and opinion, (3) summary of grounds for opinion FLORIDA RULESFla. R. Civ. P. 1.280(b)(4)

  5. Explicit protection for (1) drafts of expert records and (2) communication between an attorney and an expert, except (a) compensation, (b) facts/data considered by the expert and (c) assumptions relied upon by the expert FEDERAL RULESFed. R. Civ. P. 26(a)(2)Fed. R. Civ. P. 26(b)(4)

  6. Very limited work product protection for materials provided to a testifying expert. See Mullins v. Tompkins, 15 So. 3d 798 (1st DCA 2009) FLORIDA RULESFla. R. Civ. P. 1.280(b)(4)

  7. Expert never reads them Expert reads them but does not rely on them reaching an opinion Expert relies on them in reaching opinion Use as evidence or exhibit at trial PRIVILEGED MATERIALS PROVIDED TO EXPERT IN FLORIDA

  8. FLORIDA RULESFla. R. Civ. P. 1.280(b)(4) Party may inquire: (1) scope of employment pending case + compensation, (2) general litigation experience + percent of work for plaintiffs/defendants, (3) identity of other cases within a reasonable time period in which expert has testified, (4) approx. of expert’s involvement as an expert (# of hrs., % of hrs., % of income derived from expert testimony) NOT required to disclose: (1) earnings or income from other sources, (2) financial/business records (absent unusual/compelling circumstances

  9. FLORIDA DISCOVERY REQUESTS TO KEY ACTOR IN LITIGATION Sent to law firm after naming expert Copies of billing invoices Extent of financial relationship; how much Copies of deposition or trial transcripts of testimony

  10. MORGAN, COLLING & GILBERT, P.A. v. POPE, M.D. 798 So. 2d 1 (Fla. 2nd DCA 2001) Second District Court Appeal held requested documents discoverable because: - Relevant to demonstrate bias - Nondisclosure affects truth – seeking function of jury

  11. FLORIDA DISCOVERY REQUESTS TO PARTY REGARDING RELATIONSHIP TO EXPERT Each case testified - Deposition - At trial Each case performed analysis, examination, or rendered opinion How much paid

  12. ALLSTATE INSURANCE CO. v. HODGES 855 So. 2d 636 (Fla. 2d DCA 2003) Second District Court of Appeal again held requested documents discoverable because: (1) Requested documents showed extent of financial relationship between expert and party; (2) Requested information showed amount of money paid by party to expert for expert type resources; (3) Requested information shows bias; and (4) Limitation on disclosure would affect truth seeking function of jury

  13. QUALIFICATION OF EXPERT WITNESSES

  14. OTHER SPECIALIZED KNOWLEDGE(Video Clip Deleted)

  15. Rules of Evidence - Federal • Federal Rule of Evidence 104(a) – Questions of Admissibility Generally Preliminary questions concerning the qualifications of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privilege.

  16. Rules of Evidence- Federal Federal Rule of Evidence 702 - Testimony by Experts 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 an opinion or otherwise, if (1) the testimony is based upon 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

  17. Case Law - Federal Qualification of Expert Witness Courts engage in a three part inquiry to determine the admissibility of expert testimony under Fed. R. Civ. P. 702. 1. The expert is qualified to testify competently regarding the matters he intends to address; The methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and The testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (11th Cir. 1993).

  18. Case Law - Federal Qualification of Expert Witness Under Rule 702, a witness may be qualified as an expert by virtue of his or her knowledge, skill, experience, training, or education. Quiet Technology DC-8, Inc. v. Hurel-Dubois UK LTD.,326 F.3d 1333 (11th Cir. 2003).

  19. Case Law - Federal • Eleventh Circuit Cases • Quiet Technology DC-8, Inc. v. Hurel-Dubois UK LTD., 326 F.3d 1333 (11th Cir. 2003) (Witness qualified as an expert in aerodynamics based on his extensive education, training and experience. Court explained that although the factors governing admissibility overlap – whether a witness is qualified remains a distinct factor for consideration.) • Dracz v. American General Life Ins., 426 F.Supp.2d 1373 (M.D. Ga. 2006), aff’d, 201 Fed. Appx. 681 (11th Cir. 2006) (District court properly excluded witness from testifying as a handwriting expert considering lack of certifications in relevant industry, lack of participation in proficiency testing, and lack of training in accredited program).

  20. Case Law - Federal • District Court Cases • Vision I Homeowners Assoc., Inc. v. Aspen Specialty Ins. Co., 2009 WL 4894322 (S.D. Fla. Dec. 14, 2009)(The qualification standard for expert testimony is not stringent and so long as the expert is minimally qualified, objections to the level of the expert’s expertise go to credibility and weight, not admissibility.) • Richter v. Home Depot, U.S.A., Inc., 2009 WL 2914256 (M.D. Fla. Aug. 4, 2009) (The expert’s qualifications must relate to the matters he will address in his testimony. Court held witness qualified to testify as an expert on the nature of plaintiff’s injuries and theories of causation based on his medical education and work-related experience. Witness could not testify concerning design of a saw, its operation or on engineering matters.

  21. Rules of Civil Procedure- Florida Florida Rule of Civil Procedure 1.390(a) –Definition The term “expert witness” as used herein applies exclusively to a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify.

  22. Rules of Evidence- Florida Florida Rule of Evidence 90.702 –Testimony by experts If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determininga fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

  23. Case Law - Florida • Qualification of Expert Witness Florida courts engage in a four-prong test to determine the admissibility of expert testimony under Fla. R. Evid. 90.403: • The opinion evidence must be helpful to the trier of fact; • The witness must be qualified as an expert; • The opinion evidence must be applied to evidence offered at trial; and • The evidence, although technically relevant, must not present a substantial danger of unfair prejudice that out-weighs its probative value. CSX Transportation, Inc. v. Whittler, 584 So. 2d 579 (Fla. 4th DCA 1991).

  24. Case Law - Florida • The trial court has a great deal of discretion in ruling upon the qualifications of expert witnesses and the propriety of questions expounded. Warning Safety Lights, Inc. v. Gallor, 346 So. 2d 92 (Fla. 3d DCA 1977). • Failure to object to qualification of witness results in waiver of a challenge on that basis. CSX Transportation, Inc. v. Whittler, 584 So. 2d 579 (Fla. 4th DCA 1991). • To qualify as an expert in a given area, it must be shown that the witness acquired special knowledge of the subject matter either by study or through experience. Gianos v. Baum, 941 So. 2d 581 (Fla. 4th DCA 2006). • If the record does not support a finding that expert is qualified, the case may be remanded for an evidentiary hearing on the issue. Perdomo v. State, 829 So. 2d 280 (Fla. 3d DCA 2002). • Terry v. State, 668 So. 2d 954 (Fla. 1996) – the determination of witness’ qualifications to express an expert opinion is within the discretion of a trial judge and will not be reversed absent a clear showing of error. See also, Ramirez v. State, 542 So. 2d 352 (Fla. 1989).

  25. ETHICAL ISSUES

  26. Deal With the Devil • The devil offers three men, a doctor, a bus driver and a legal expert, each a free pass to heaven as long as they can answer a simple question. • “What does 1+2 equal?” • Both the doctor and the bus driver immediately answer “3” and receive a pass. • The legal expert hears the question and thinks for a minute. He then closes all the doors and blinds and pulls the devil in close. • His answer: “First let’s discuss my fee and then you can tell me what you want 1+2 to equal.”

  27. Jackie Chiles (Video Clip Deleted)

  28. Letters of Protection • Attorney Jackie Chiles sends Kramer to Dr. Bison, the doctor he has selected, and Chiles’ assistant follows Chiles instructions to “tell him it’s for me.” Dr. Bison’s charges are ultimately secured by a “letter of protection” whereby payment of the doctor’s charges are guaranteed from the proceeds of Kramer’s lawsuit against Java World. • Chiles and Kramer ultimately settle the case with Java World pursuant to a settlement whereby the only consideration provided by Java World is that Kramer receives “free coffee for life.” • Can Chiles settle the case without notifying Dr. Bison or paying his charges? • Would your answer change if Chiles had settled the case for $50,000 in attorneys’ fees, zero for costs and “free coffee for life” for Kramer?

  29. Rules 4-1.15 & 5-1.1(e), Rules Regulating The Florida Bar • Rule 4-1.15, Rules Regulating The Florida Bar, which is titled “Safekeeping Property,” provides that “[a] lawyer shall comply with The Florida Bar Rules Regulating Trust Accounts.” • Rule 5-1.1(e), Rules Regulating The Florida Bar, which is titled “Notice of Receipt of Trust Funds; Delivery; Accounting,” provides that “Upon receiving funds or other property in which a client or a third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or my agreement with the client, a lawyer shall promptly deliver to the client or the third person any funds or other property that the client or third person is entitled to receive and, upon the request by the client or third person, shall promptly render a full accounting regarding such property.

  30. The Florida Bar v. Silver788 So.2d 958 (Fla. 2001) • Failing to notify health care providers holding letters of protection that settlement funds had been received warranted a public reprimand and violated former Rule 4-1.15(b), Rules Regulating The Florida Bar holding that, even though check was made out directly to client, the attorney was required to notify medical providers after issuing letters of protection and medical assignments authorizing the attorney to pay them.

  31. Expert Fees & Other Witness Compensation Issues • Assume that attorney Jackie Chiles wants to retain Java Joe, a world renowned expert in coffee cup top design defects, to perform the tests on a sample cup top from Java World for Kramer’s case and to serve as an expert witness at the trial of the case. • When discussing his fee structure, Java Joe explains that his standard fee is a flat fee or ten percent (10%) of the amount recovered in the case, which ever is greater. • Can Jackie agree to Java Joe’s fee structure?

  32. Contingency Fees • Rule 4-3.4 governs • A lawyer shall not: • (b) fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings;

  33. Diamonds are an Expert’s Best Friend • Greedy and Grabby are heirs to a diamond fortune and are locked in heated litigation. • Wanda Witness is a former VP and long time employee diamond company. • Greedy hires Wanda to testify to the business practices of the diamond company in hopes of gaining a larger share of the estate. • Greedy and Wanda enter a contract where she can would receive a flat fee, but could receive bonuses of up to $1,000,000 depending on the “usefulness” of the information provided. • Is this agreement acceptable if she is an expert witness? • Is this agreement acceptable if she is a fact witness?

  34. The Florida Bar v. Wohl842 So.2d 811 (Fla. 2003) • This case involved an agreement providing for “assistance” and which included compensation of: (1) $25,000 for the first fifty hours of assistance; (2) a potential “bonus” ranging between $100,000 and over $1,000,000, depending on “the usefulness of the information provided,” which would be paid after a “culmination event” by which the party would have received some relief against the opposition; and where; (3) additional hours of assistance would be paid at the rate of $500 per hour over the bonus amount and after the culmination event. • The Florida Supreme Court stated that such “provisions go to the very heart of the evil sought to be avoided by [rule 4-3.4(b) ]: the temptation of a witness to color his or her testimony” and concluded that the agreement was “an inducement that went far beyond reasonable expenses incurred by the witness.”

  35. The Ethics of the Experts • With so many cases involving expert testimony, associations of expert witnesses have formed most of them focusing on specific types of litigation. • Many of these Associations subscribe to “Codes of Ethics” for the participating experts. • However the qualification to become a certified member is usually just payment of a due. • There is also no enforcement mechanism for violations of these codes. • The ABA has found that the ethical rules governing professional organizations and specialties are not sufficient to curb unreliable expert testimony in favor of one party.

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