Expert Witness Tactics and Tips

Whether the expert opinion testimony meets the Daubert/Joiner/Kumho criteria is usually brought to the court in a motion in limine. Court or counsel may call for a Federal (or similar state) Rule 104 evidentiary hearing. The Daubert opinion states that when expert testimony is offered, the trial judge must make at determination about admissibility “pursuant to Rule 104(a)”. Daubert, 113 S.Ct. at 2796.

Some attorneys, when faced with a motion to exclude their expert’s testimony, take the position that their adversary, being the moving party on the exclusionary motion, has the burden of proof on their exclusion motion. That position is wrong! When challenged, the proponent of evidence has the burden of proving admissibility. Indeed, Rule 104(a) specifically requires the proponent of the expert testimony to show admissibility.

If there is no foundation in the record, the appellate court or the trial court (after the close of evidence) can strike the expert’s opinion as having no foundation. I repeat, a ruling as to the admissibility of expert testimony can come not only before or during the admission of evidence, but also during a motion for directed verdict, a post-trial motion, or at appeal. Consequently, in the federal courts and most state courts, the proponent of the evidence must have a record of evidence showing the foundation for the expert testimony

  1. even if no objection or Daubert motion to exclude is made by the opposition at the time of the evidence being received, and
  2. even if the trial court says it does not need further foundation to admit the evidence.

The U.S. Supreme Court ruled on this very point in an 8th Circuit case arising out of North Dakota, Weisgram v. Marley Co., 120 S. Ct. 1011 (2000) (Affirming Weisgram v. Marley Co. (99-161) 169 F.3d 514, by the Eighth Circuit U.S. Court of Appeals vacating a jury verdict for Chad Weisgram and remanding to the U.S. District Court for the District of North Dakota for entry of judgment as a matter of law for Marley Corp.). Rule 50 of the Federal Rules of Civil Procedure allows a federal appeals court to instruct a district court to enter judgment as a matter of law, rather than leaving that determination to the lower court, after finding the evidence insufficient to support a verdict The Eighth Circuit found that the lower court abused its discretion in admitting the testimony of three technical witnesses in a suit alleging that the death of Weisgram’s mother, Bonnie Weisgram, resulted from smoke inhalation caused by a defective baseboard heater manufactured by Marley.

The syllabus of the Supreme Court says its all:

At trial, Weisgram introduced the testimony of three witnesses, proffered as experts, in an endeavor to prove the alleged heater defect and its causal connection to the fire. The District Court overruled Marley’s objections that this testimony was unreliable and therefore inadmissible under Federal Rule of Evidence 702 as elucidated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579. At the close of Weisgram’s evidence, and again at the close of all the evidence, Marley unsuccessfully moved under Federal Rule of Civil Procedure 50(a) for judgment as a matter of law on the ground that plaintiffs had failed to meet their burden of proof on the issues of defect and causation. The jury returned a verdict for Weisgram. Marley again requested judgment as a matter of law, and additionally requested, in the alternative, a new trial, pursuant to Rules 50 and 59; among arguments in support of its post-trial motions, Marley reasserted that the expert testimony essential to prove Weisgram’s case was unreliable and therefore inadmissible. The District Court denied the motions and entered judgment for Weisgram. The Eighth Circuit panel held that Marley’s motion for judgment as a matter of law should have been granted because the testimony of Weisgram’s expert witnesses, the sole evidence supporting the product defect charge, was speculative and not shown to be scientifically sound, and was therefore incompetent to prove plaintiffs’ case. The court then considered the remaining evidence in the light most favorable to Weisgram, found it insufficient to support the jury verdict, and directed judgment as a matter of law for Marley.

The Weisgram decision resolved a split in the circuit courts on the proper remedy if the expert testimony is improperly admitted. Some entered judgment n.o.v.; others sent the case back for a new trial. The Supreme Court resolved the split by saying the proponent of the evidence does not get a new trial — no second chance to repair the unexpected exclusion of the opinion!

The fact that the proponent must lay a foundation means the opposition has nothing to loose by automatically making a Daubert objection at trial. But defendants must properly preserve the Daubert objections at trial and move for judgment both during and after trial on the ground that, without the expert testimony, the plaintiff cannot satisfy its burden.

For plaintiffs, Weisgram transforms expert testimony into a time bomb. An unexpected objection at trial can be a disaster. To prevent mousetraps, counsel might try to secure from the trial court a pre-trial order that all Daubert objections must be made at a specified time after receipt of the expert’s opinion from the proponent, on pain of the court being entitled to take the opinion as without Daubert objection being asserted. See the suggested format at Appendix 3 of this article.

Texas is a state where fortunately, the court has not allowed a mousetrap by non-objection. In Texas, as in most states, the burden to prove than an expert witness is qualified is on the proponent of the evidence. In Texas the party opposing the expert’s qualification must object before the evidence is offered. He/she/it may not wait until the appeal. Maritime Overseas Corp. v. Ellis, 971 SW2d 402, 409-410 (Tex. 1998) This is true is most states, but not all.

It is obvious that in depositions of experts, the opposition to the expert will want to make a record on:

  • Lack of specific educational background.
  • Lack of studies by the witness personally which address the issues
  • Lack of knowledge of studies performed by others which address the issues.
  • Lack of specific experience by the witness in the specific field.

In litigated cases involving experts, one side or the other will usually make certain standards comments in their briefs to the court. These oft-used points include:

  • Federal Rule 702 (and the similar state court rule) remains liberal in language. The text of the rule supports admission of all expert testimony that will assist the trier of fact to understand the evidence or to determine a fact in issue.
  • Methodology and conclusions are distinct, and logical conclusions from the data are not to be excluded when method and logic are appropriate and conclusions are in the range where experts might reasonably differ.
  • The Daubert factors to be considered must be applied flexibly, and no particular factor such as peer review need be present. It is not enough to only point to the Daubert case as the enunciated standards for the admissibility or exclusion of evidence. One must go further and note the flexibility of examination and standards as shown by the Kumho case.
  • There is no presumption that an expert witness is competent or that his/her opinion is admissible under the gatekeeping standards. The proponent of the evidence must lay the foundation.
  • Trial courts must watch that they are determining admissibility and not sufficiency of the evidence. The two concepts are different. See In re joint Easter & Southern District Asbestos Litigation, 52 F3d 1124 (2nd Cir 1995). See also McCullock v. H. B. Fuller Co., 61 F.3d 1038, 1045 (2d Cir. 1995)(expert’s shortcomings were properly explored on cross-examination and went to his testimony’s weight…not its admissibility”.)

“Trial judges must exercise sound discretion as gatekeepers of expert testimony under Daubert. [The defendant] however, would elevate them to the role of St. Peter at the gates of heaven, performing a searching inquiry into the dept of an expert witness’s soul – separating the saved from the damned. Such an inquiry would inexorable lead to evaluating witness credibility and weight of the evidence, the ageless role of the jury”.

Daubert specifically instructs us, as its fourth “general observations” for the trial courts that rather than outright exclusion “[Vigorous cross examination, presentation of contrary evidence, and careful instruction of the burden of proof are the means of attacking shaky but admissible evidence.]” Daubert, at 596.

As noted elsewhere in this article, if there is no sufficient foundation of testimony or evidence to meet the Gatekeeper requirements, the opinion of the expert is subject to be removed from consideration by the jury, or removed from the evidence on appeal, by a judge who concludes that although no objection to the opinion was made at the time of presentation, the opinion does not meet the reliability requirements. To avoid a “mousetrap,” cautious counsel will always ask the expert sufficient questions establish a record of the necessary foundation. Now what should you ask the witness to lay that foundation? Every case will needed different factors to be explained by the expert. An inclusive laundry list of foundation items follows as Appendix 1.

Few cases will be subject to all the items I have listed in Appendix 1. Obviously, if you can get all of them in, you will have good protection to keep the opinion in the case. Equally obvious, if you do get them all in, you will bore a jury to death. I suggest that if you need to ask the expert a lot of foundation questions, that you call for a Rule 104 hearing outside the presence of the jury, make your record for admissibility for the judge and appeals court, and then return to the jury to only ask before them what the jury really wants to know and is of interest to them.

In most cases you will want to eliminate surprise objections to your expert’s opinion, by obtaining a court order requiring your opponent to make the objections early enough so that if necessary you can go get another expert. Read a suggestion regarding such a pretrial court order in Appendix 3.

Continue Reading…