Expert Testimony – Facing the Challenge of Getting it Right
There is nothing more important in a product liability case than getting the expert testimony to come out right. Succeeding in this effort requires finding an expert whose opinion has substance, who has excellent presentation skills, and who is high on the credibility and likeability scales. Even with all of those qualities in an expert, however, the lawyer’s work is not done. The client will not have a good result unless counsel makes the right decisions about the cost of putting the case together, the flow of information to and from the expert, and the timing of expert disclosures. An attorney who is willing to take on all of these issues will put his client in the best position to win the case.
Substance in the Expert Opinion
Every lawyer knows about Daubert. That name is shorthand for Rule 702 and the many judicial opinions that describe the court’s role as “gatekeeper” in technical cases. In both state and federal court, expert opinions are only admissible if the expert is qualified to give the opinion, and if the opinion is sufficiently reliable to be helpful to the jury in deciding disputed factual issues.
Most fundamentally, the expert must have credentials – academic or otherwise – in the relevant technical field. A bicycle mechanic or a registered professional engineer may both be qualified to testify about breach of a standard which caused the failure of bicycle brakes, but a professor with a doctorate in physics may not. Having a Ph.D. does not automatically mean that the professor has knowledge of bicycles sufficient to render his opinions helpful to the jury, even though the brake failure involves principles of physics.
If the expert has relevant expertise, he or she must also do sufficient work on the case to be able to express a meaningful opinion. This probably requires personal study of the available evidence, examination of exemplars (products exactly like the one at issue) and similar products from other manufacturers. It probably also requires familiarity with applicable OSHA, ANSI and other standards. It may also require testing and experimentation to eliminate alternative failure modes and to verify hypotheses.
The value of expert testimony is directly linked to its power to persuade. The judge must be persuaded that the Rule 702 standards have been met. The defense lawyer and the defendant (who don’t necessarily always agree) must be persuaded that there is risk in failing to settle. The jury must be persuaded that the product was defective and unreasonably dangerous.
To persuade, the expert must be a teacher. He must be able to show, to demonstrate, to defend his opinions to an audience of plain folks. The classic example of a good teacher is Richard Feynmann, the famous physicist, who showed the world why the space shuttle Challenger failed. Using a beaker of ice water and some rubber bands, Feynmann showed how the flexible O-ring that was intended to seal a joint between the space shuttle’s components had gotten cold, lost its elasticity, shrunk and failed to seal the joint. After seeing this two minute explanation on a TV news conference, our nation was convinced that good, reliable analytical work had been done. We were convinced that we could go forward with confidence, knowing why disaster had struck and how it could be averted in the future. Such simple, convincing explanations of highly technical issues can occur only when an expert has the knowledge, confidence and inclination to teach.
The “format” options for presenting technical information today are more numerous and readily available than ever. A diagram on a chalk board, blown-up photographs, power point presentations , and computer animations can be used alone or in combination. Deciding how the technical evidence will be presented can be as important as the testimony itself.
Credibility must be built on the substance of the case at hand. However, expert work does not exist in a vacuum. Before retaining an expert, counsel should ask blunt questions about other topics which may come up in cross-examination.
First, ask the expert about personal experience with the product. If the case is about a boating accident and the liability theory is that there should have been a “kill” switch to shut the motor off when the operator was thrown out of the boat, ask the expert if he has (or ever had) a boat. Did it have a kill switch? Did he use it? Did he make his children use it when they operated the boat? If the case is about a ladder, ask the expert if he has a ladder at home or at work. Was it made by the defendant manufacturer? Was it similar in size and design to the failed ladder? These questions will be asked by skilled defense lawyers. Plaintiff’s counsel should know the answers sooner rather than later.
Criminal convictions are also important to credibility. One might think it unnecessary to ask, but there is a chemical laboratory owner in Massachusetts who testifies about fuels and accelerants in fire and explosion cases. This man has been convicted of submitting a fraudulent report to the FDA, but does not volunteer that information on his resume. This situation may be unusual, but it is not unique. Every pre-retention interview should include a question about past criminal convictions.
Prior testimonial experience is another important credibility topic. Experience can be a good thing. However, there are at least two areas to discuss with the expert prior to retaining him. One is the risk that the expert has previously taken an inconsistent position. If he has ever testified on a similar issue, either for or against the plaintiff, there may be transcripts or reports containing assumptions, facts or opinions which are contrary to the interests of the plaintiff in the present case. For example, if the present case is about an aluminum ladder, has the expert previously testified in a fiberglass ladder case that the aluminum design is a good one? The second is bad testimonial experiences. Well-qualified experts are sometimes precluded from testifying, by Daubert or other exclusionary orders, through no fault of their own. Sometimes an expert’s testimony may be ordered stricken from the record, and the jury instructed to disregard it. Occasionally, mistrials are granted as a result of problems with expert testimony. If the defense knows about these instances and plaintiff’s counsel doesn’t, they may come up in cross-examination as a surprise. Whether or not the attack on the expert is ultimately deemed admissible, if the issue is leaked to the jury, the expert’s credibility is compromised. Thoughtful, direct inquiry of the expert at the beginning of the case may give plaintiff’s counsel warning and an opportunity to either seek another expert or file a motion in limine to exclude inappropriate cross-examination.
Likeability may be the least controllable and predictable part of working with an expert. Jurors may actually like someone even if counsel does not, and vice versa. However, since testimony is more persuasive if the witness is likable, at least some consideration should be given to whether the expert is patient or quick-tempered, self-confident or insecure, friendly or stand-offish. Does he have nervous habits that interfere with listening to him? Is his appearance too slick or too sloppy?
Learning how an expert presents himself can only be accomplished in a face to face setting. Taking the time to meet an expert before hiring him is part of the lawyer’s commitment to the client, and may be a case-saver in the long run.
Cost and Timing Issues with Expert Testimony
Getting solid expert opinions from articulate, credible experts is the ideal, but real cases are not always so simple. To get a good result for an injured client, counsel must manage cost, and decide which experts to rely on and when. This requires constant reassessment of the case.
In most cases, cost is an over-riding factor. Even if counsel could afford tens of thousands of dollars to develop the case, will the damages justify such expense? What good is it to win the case if the client’s net recovery will be minimal? If costs are to be reasonably controlled, is it better to get a local expert who may be less qualified and less persuasive, or a national expert from far away? Is it cheaper to pay $100 per hour for an inexperienced expert, or $350 per hour for someone who has had many similar cases? What is the overall budget for the case likely to be, and at what stages of the case will the money have to be paid?
To answer these difficult practical questions, it is useful to identify long and short-term goals. First, is an expert needed immediately? If the product defect is an obvious one, maybe the case can settle without hiring an expert. This rarely happens in products cases, but it is possible. Once it is clear that an expert is needed, what is the purpose of the expert’s involvement? Is it merely to document the scene of the injury and explain the existing evidence? If so, maybe a competent, careful local person is the right choice. If that stage of the case has passed and the defense has made it clear that there will be no settlement offer, maybe it is necessary to change experts. Before suit is filed, the expert who will likely be the “testifying expert” at trial must be selected, retained, and fully committed to the case. If discovery reveals new issues or problems, it may be necessary to retain a different or an additional expert. If trial is imminent and new problems or opportunities arise, it may be appropriate to hire a “behind the scenes expert” to advise counsel or the testifying expert.
Thinking creatively about when and why to hire experts is the best way to manage out of pocket expert expenses.
Dealing with experts is like other parts of lawyering. Counsel must be fully committed to the case, reassess constantly, and keep the client’s bottom-line interests in mind. As critical as good experts are to successful cases, only lawyers can deliver a good end result to a client.