I. Scope of Paper
All expert witnesses have a past. The ability to find and utilize that past is important when deciding whether to retain or impeach an expert witness. This paper outlines some of the areas which may be fruitful for this sort of research.
II. Daubert History – Generally
A. Positive Treatments A. Positive Treatments
“The trial court found [the expert witness] to be ‘very impressive’ and that ‘his knowledge of automobiles, and his whole field of expertise, was outstanding.’ We agree with this assessment.” This example, from Ledet v. Roy, 540 S. 2nd 105, 107 (LA App. 3rd Cir. 1989) is the sort of review one wishes from a Court of Appeals.
It is possible to find opinions in which experts’ methods and credentials have been explicitly approved, if not praised, by various courts. All things being equal, these are the sorts of experts who should be retained. What could be better than having an expert who was described as “undoubtedly qualified” as described in Cross v. Wyeth Pharmaceuticals, Inc., 2011 WL 3498305 (M.D. Fla. 2011)? This was the defendant’s expert whose testimony the judge described as, “helpful, reliable, and supported by [his] extensive education and experience in the relevant field of medicine.” Another example is Columbia Health Services of El Paso, Inc. v. Columbia-HCA Healthcare Corp., 1996 WL 812934 (W.D. Tex) in which the expert economist was found to have “impeccable credentials.”
These experts are out there and can be retained. Consider seining Westlaw, Lexis and other legal search sites for opinions which explicitly approve a particular expert witness.
B. Negative Comments B. Negative Comments
Some courts’ comments are not as charitable toward expert witnesses. You may want to think twice before retaining an expert whose opinions have been characterized as “unpublished, unverified . . . untested . . . not supported by any analysis which the trial court can identify as scientific.” Demaree v. Toyota Motor Corp., 37 F. Supp. 959 (W.D. Ky. 1999). Another expert’s opinions were excluded as being “unsupported, unscientific” and “pure speculation.” Abarca v. Franklin County Water District, 813 F. Supp. 2d 1199.
Consider the comment in Kunz v. DeFelice, 538 F.3d 667 (7th Cir. 2008), involving a § 1983 action for an alleged brutal interrogation. Kunz called an expert witness to testify about his ability to recall and narrate events on the night in question, given the fact that he had used a small amount of heroin earlier in the evening. The appellate court affirmed the district court’s exclusion of the witness and explained that this “was a singularly unimpressive witness.” It emphasized, that despite being titled a “PharmD” he only had one year of classes (with only one class in pharmacology), the degree was not actually in pharmacology, that his previous experience was working as a nutritionist, and that he had formulated his opinion in this case based only on one article (which contradicted his conclusion).
C. The Court’s History C. The Court’s History
While not squarely within the scope of this paper, remember to look at the court’s history in dealing with various Daubert challenges. It is possible, but not likely, that the court has actually passed on the qualifications and methodology of the expert in question. It would be very helpful to find that information and know whether this judge tends to favor or disfavor a particular expert witness.
Active trial courts deal with Daubert challenges on a regular basis. With the easy access to electronic dockets and local list servers, you may be able to identify and observe a Daubert hearing in front of your particular judge. By doing so, you can quickly identify and highlight many of the areas which a judge may be looking at when making her decision on other expert witnesses. Courts frequently have routines for dealing with routine expert witnesses. It is fair to assume that the judge has her own pattern or practice when dealing with routine witnesses such as economists, treating physicians or appraisers. Knowing a particular court’s likes and dislikes when it comes to expert witnesses can be very helpful.
You may also want to consider hiring the expert witness who the judge’s old firm used in a similar case.
