How To Get The Most Out Of Your Expert Witness

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How To Get The Most Out Of Your Expert Witness

February 7th, 2014

If your case involves technical, scientific, or unique industry issues, you’ll need experts to effectively present your arguments to the judge or jury. Your chances of winning may turn largely on the clarity and credibility of your experts’ testimony. The right experts can be hard to find, and often account for a substantial portion of your litigation costs. Given the importance and expense of hiring a qualified and savvy expert, it is critical that your lawyers maximize the impact of the expert’s testimony. To do so, your lawyers must capitalize on the rules of evidence and not let them get in the way.

Under the Federal Rules of Evidence, which mirror most states’ evidentiary rules, the judge acts as a “gatekeeper” to ensure that expert testimony is both relevant and reliable before it becomes admissible. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579. Relevance in this context is demonstrated if the expert’s methodology properly applies to the facts at issue. Reliability depends on the credibility of the methods used to arrive at the expert’s opinion, often shown through (1) testing of the expert’s theories; (2) peer review and publication of those theories; (3) theories have a known, minimal rate of error; and (4) have been generally accepted in the expert’s professional community. Before an expert’s opinion is even considered, the expert himself must be qualified, meaning he must show expertise in the field of knowledge that underlies his opinions. A judge’s failure to properly make these threshold determinations can lead to improper exclusion of your expert’s competent testimony, and improper admission of an opponent’s incompetent expert testimony. In some cases, a failure at the gatekeeper level can lead to a trial do-over, or even cause you to lose the case.

Take for example the recent Ninth Circuit case, Estate of Barabin v. AstenJohnson, Inc. (14 C.D.O.S 415, January 15, 2014), where the appellate court reversed a $10 million judgment for the plaintiff because the trial court abused its gatekeeper function by improperly admitting expert testimony that the plaintiff’s exposure to asbestos-containing dryer felts at the defendants’ mills had substantially contributed to the plaintiff’s lung disease (and that “even one fiber can cause lung disease”). The trial judge failed to properly evaluate the reliability of the expert’s opinion, and the appellate court found that to be prejudicial to the defense. The defendant was granted a new trial, forcing the parties to expend litigation costs all over again.

Expert related evidentiary issues were the central focus in several of our firm’s recent cases.

In one recent case we defeated multiple breach of contract claims totaling over $10 million where the claimant alleged that damage to its cargo vessels were due to negligent repairs at our client’s shipyards. In support of their claims, multiple marine surveyors offered vague opinions about how our client’s work caused later damage to the claimant’s ships. We countered, not only with marine surveyors’ opinions to the contrary, but with experts in materials science who concluded that the claimant’s experts’ theories were physically impossible. We also argued that since the claimant’s experts were unqualified, their testimony should be excluded. Finding that the claimant’s experts were not qualified to carry the claimant’s burden of proof, the claimant’s claims were dismissed.

In another case, our client, a manufacturer of high-speed boats, was sued after four passengers were severely injured when they drove one of our client’s boats into a concrete seawall on the Colorado River. The plaintiffs alleged that the allision was caused by the boat’s defective design, which led to the failure of a hydraulic steering hose, making the boat impossible to control at high speed. We filed for summary judgment using expert testimony to establish that the hose’s failure mechanism could not have been caused by the boat’s initial design, and that the failure was due to subsequent repairs well after the boat was sold. We made sure to reveal to the court our expert’s extensive experience with high-speed boat design and hydraulic steering mechanisms before asserting his conclusion. The plaintiffs’ opposition was based on the conclusions of a “boat design expert” whose qualifications were listed as nothing more than “marine mechanic, boat builder and operator of high performance boats.” In ruling on our motion, the judge considered the plaintiff’s expert’s conclusions, but effectively dismissed the products liability claim at issue, allowing us to settle the case on favorable terms.

These real world examples demonstrate how experts can either make or break your case, and if your lawyers don’t pay close enough attention to the threshold evidentiary issues, your chances of success in a technical case can diminish substantially. The takeaway is to have your lawyers carefully vet the experts you retain, and ensure that their testimony will be admissible. If your experts and lawyers work well together, the money spent on a good expert can go a long way.

I you have questions or would like more information, contact Max L. Kelley at