{"id":5522,"date":"2012-11-12T13:54:51","date_gmt":"2012-11-12T19:54:51","guid":{"rendered":"https:\/\/www.textrial.com\/bitten-twice-shy-knowing-experts-daubert-history\/"},"modified":"2019-03-07T16:41:24","modified_gmt":"2019-03-07T16:41:24","slug":"bitten-twice-shy-knowing-experts-daubert-history","status":"publish","type":"post","link":"https:\/\/www.textrial.com\/es\/bitten-twice-shy-knowing-experts-daubert-history\/","title":{"rendered":"Once Bitten, Twice Shy: Knowing Your Experts\u2019 Daubert History"},"content":{"rendered":"

<\/a><\/a><\/a><\/a><\/a>I. Scope of Paper<\/h3>\n

All expert witnesses have a past.\u00a0 The ability to find and utilize that past is important when deciding whether to retain or impeach an expert witness.\u00a0 This paper outlines some of the areas which may be fruitful for this sort of research.<\/p>\n

<\/a><\/a><\/a><\/a><\/a>II. Daubert History – Generally<\/h3>\n

<\/a><\/a><\/a><\/a>A. Positive Treatments\u00a0 A. Positive Treatments<\/h4>\n

\u201cThe trial court found [the expert witness] to be \u2018very impressive\u2019 and that \u2018his knowledge of automobiles, and his whole field of expertise, was outstanding.\u2019\u00a0 We agree with this assessment.\u201d\u00a0 This example, from Ledet v. Roy, 540 S. 2nd 105, 107 (LA App. 3rd Cir. 1989)\u00a0is the sort of review one wishes from a Court of Appeals.<\/p>\n

It is possible to find opinions in which experts\u2019 methods and credentials have been explicitly approved, if not praised, by various courts.\u00a0 All things being equal, these are the sorts of experts who should be retained.\u00a0 What could be better than having an expert who was described as \u201cundoubtedly qualified\u201d as described in Cross v. Wyeth Pharmaceuticals, Inc., 2011 WL 3498305 (M.D. Fla. 2011)?\u00a0 This was the defendant\u2019s expert whose testimony the judge described as, \u201chelpful, reliable, and supported by [his] extensive education and experience in the relevant field of medicine.\u201d\u00a0 Another example is Columbia Health Services of El Paso, Inc. v. Columbia-HCA Healthcare Corp., 1996 WL 812934 (W.D. Tex)\u00a0in which the expert economist was found to have \u201cimpeccable credentials.\u201d<\/p>\n

These experts are out there and can be retained.\u00a0 Consider seining Westlaw, Lexis and other legal search sites for opinions which explicitly approve a particular expert witness.<\/p>\n

<\/a><\/a><\/a><\/a>B.\u00a0Negative Comments\u00a0 B. Negative Comments<\/h4>\n

Some courts\u2019 comments are not as charitable toward expert witnesses.\u00a0 You may want to think twice before retaining an expert whose opinions have been characterized as \u201cunpublished, unverified . . . untested . . . not supported by any analysis which the trial court can identify as scientific.\u201d\u00a0 Demaree v. Toyota Motor Corp., 37 F. Supp. 959 (W.D. Ky. 1999).\u00a0 Another expert\u2019s opinions were excluded as being \u201cunsupported, unscientific\u201d and \u201cpure speculation.\u201d\u00a0 Abarca v. Franklin County Water District, 813 F. Supp. 2d 1199.<\/p>\n

Consider the comment in Kunz v. DeFelice, 538 F.3d 667 (7th Cir. 2008), involving a \u00a7 1983 action for an alleged brutal interrogation.\u00a0 Kunz called an expert witness to testify about his ability to recall and narrate events on\u00a0 the night in question, given the fact that he had used a small amount of heroin earlier in the evening.\u00a0 The appellate court affirmed the district court\u2019s exclusion of the witness and explained that this \u201cwas a singularly unimpressive witness.\u201d\u00a0 It emphasized, that despite being titled a \u201cPharmD\u201d 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).<\/p>\n

<\/a><\/a><\/a><\/a>C.\u00a0The Court\u2019s History\u00a0 C. The Court\u2019s History<\/h4>\n

While not squarely within the scope of this paper, remember to look at the court\u2019s history in dealing with various Daubert challenges.\u00a0 It is possible, but not likely, that the court has actually passed on the qualifications and methodology of the expert in question.\u00a0 It would be very helpful to find that information and know whether this judge tends to favor or disfavor a particular expert witness.<\/p>\n

Active trial courts deal with Daubert challenges on a regular basis.\u00a0 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.\u00a0 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.\u00a0 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.\u00a0 Knowing a particular court\u2019s likes and dislikes when it comes to expert witnesses can be very helpful.<\/p>\n

You may also want to consider hiring the expert witness who the judge\u2019s old firm used in a similar case.<\/p>\n

Download and read the entire publication here.<\/a><\/h4>\n","protected":false},"excerpt":{"rendered":"

I. Scope of Paper All expert witnesses have a past.\u00a0 The ability to find and utilize that past is important when deciding whether to retain or impeach an expert witness.\u00a0 This paper outlines some of the areas which may be fruitful for this sort of research. II. Daubert History – Generally A. Positive Treatments\u00a0 A.
LEER M\u00c1S<\/a><\/p>\n

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