TO SERVE (clients) AND PROTECT (experts)
You are about thirty days from trial in your products liability case. Clients are ready; experts seem prepared; and you're honing a masterful opening statement. Then, a knock at the door-you open it, say hello and your case seems to fall apart. Your opponent has dropped a thirty-page "Daubert"1 or "gatekeeper" pre-trial motion in your lap, asking the federal trial court to do no less than exclude your experts and their opinions at time of trial.
Hopefully, however, you properly prepared, and with your experts' help, you may even be able to turn that gatekeeper motion into a sword. This article explores some of the best ways to do that, and how to put yourself in the best position to serve your clients by properly protecting your experts and the critical evidence they will proffer at time of trial.
Protecting your expert, however, requires pre-planning. Your strategy must include properly defending your expert at deposition, conducting a thorough deposition of your opponent's expert, carefully preparing your expert and his evidence for trial, and perhaps even using Daubert and its progeny to neutralize your opponent's evidence.
Defending Your Expert at Deposition2
The first step in defense of your expert is close coordination with him or her. Although experts are often experienced testifiers and usually need less preparation than lay witnesses, never be complacent. Make sure your expert is familiar with everything in the case files relevant to her proffered opinions, and always determine whether she ever gave testimony or authored papers counter to her proposed opinions in your case.
Even with experienced experts, ensure that you personally review every document in their file. Ask questions about any papers that include handwritten notes or have not been identified earlier in the litigation. Anticipate that whether or not you ask these questions, your opponent will. Coordination should also include a review of the likely jury instructions that relate to your expert's areas of testimony. This allows the expert and you to focus better on exactly what the jury needs to understand.
Review any related testimony in the case given by your other experts. Your primary job with experts in a products case is to minimize any chance that your adversary can establish inconsistencies between them. Make sure each of your experts knows where her opinion testimony ends and your next expert's testimony begins. Preclude overlaps and always avoid gaps. When your experts finish testifying at their depositions, you want your opponent to realize that they have covered all the prima facie elements of your case without inconsistency or voids in their collective testimony.
Also ensure that each of your experts knows the key facts that your other experts are relying on in forming their opinions. Make your experts equally aware of the likely opinions and key facts that the defense experts harbor. Where those facts or opinions are subject to attack, you should make a tactical decision with your experts. You can let them directly attack the opinions and underpinnings of your opponent's experts at deposition, or save the best for trial.
In any event, at the deposition always protect your experts from oppression, annoyance and embarrassment. Let your opponent know that you are always able and willing to bring any tactics that sink below professional standards to the direct attention of the court.
Deposing Opposing Experts
Before ever deposing a particular expert, familiarize yourself with her prior work and opinions, and read everything she has published that relates to the particular issues in your litigation. Never use the actual deposition of an opposing expert to educate yourself on the subject matter; the lesson will be too late to serve your client.
Determine whether the deponent's opinions are generally accepted or outside the mainstream. Contact other experts retained by you in the case or in other cases, and inquire about the deponent's reputation, credentials and history.
During the deposition, first examine the expert's background and qualifications, including her education, training related directly to the issues addressed in her opinions, experience, certifications, license, publications, professional presentations, awards and honors.
Do not hesitate to ask the expert point-blank for her opinions in your particular litigation. Then ask her to support those opinions with facts, information sources and reasoning. Establish how much faith the expert puts in each of her opinions. Is the opinion true all of the time, some of the time, or less? What facts if changed would decrease the reliability of the opinion?
Never be shy. Always ask the expert how much she is getting paid, and whether she usually works for plaintiff or defendants and at what ratio.
Get into the particulars of the injury event. How exactly does the expert believe the product was being used? How exactly did the product perform? What occurred first? What happened next? And next?
Pin the expert down on the facts (as she understands them). For example, who was doing what at each point in the injury sequence? How does she know?
Then zero in on her opinions. Try to get her to commit to opinions or bases for the opinions that do not square with the physical facts.
Also make sure you cover all possible defenses with the expert. What does she think about unforeseeable misuse, product alteration, superseding causes, the negligence of other persons and entities, comparative fault, and the like? Why? How does she know? Review every basis for every opinion and have the expert expressly link each one to her understanding of the facts and physical evidence until you sense a serious discrepancy or inconsistency. Then, transition smoothly to another item and save the "silver bullets" for trial.
Review on the record any formulae, calculations or propositions of physics or mathematics relied on by the expert. Even if you do not know what she is talking about, get it all on the record through testimony or exhibits so that your experts or more experienced product lawyers who you may later associate with you on the case can review and criticize it before trial.
Finally, if your opponents have multiple experts, exploit any inconsistencies of fact or opinion between their experts. Where possible, for example, get the accident reconstructionist to comment on how injuries occurred. His testimony could well weaken the trial testimony of your opponent's biomechanical expert at time of trial. Whenever possible, get one expert to contradict or at least lock in facts that other defense experts must use in forming their opinions. Look for the gaps, overlap and inconsistencies. They can ruin a defense and give your expert plenty to talk about at trial.
Preparing Your Expert for Trial
Even with experienced experts, careful preparation is a must. Start with clothes; your expert should always dress in character. Professors should look like professors, not lawyers. Dresses, ties and jackets are always appropriate, but most importantly experts should appear natural and at ease. Jurors always respond better to witnesses who appear natural.
Timing also counts. Plan to put critical experts on in the morning when the entire court is most alert. No upside exists to having key testimony missed by inattentive jurors or the judge. In addition, postponing key testimony till late in the day can give your opponent the entire evening to prepare detailed cross-examination of your expert, never an advantage.
As to specifics, always ensure that your expert can review her qualifications with the judge and jury in a natural manner, appearing neither modest nor proud. Know her background. For example, if she has not published papers in the field, avoid that area of questioning. Similarly, if she is not a member of the most prestigious professional associations, do not belabor the issue; instead, emphasize her strengths-education, design experience, teaching positions and the like. Establishing qualifications is an important part of direct testimony; if it is short-changed, both judge and jury may give little weight to the rest of the expert's testimony and your critical evidence.
Whether preparing them to testify about qualifications or opinions, remind your experts that they are not ordinary witnesses; jurors expect more of them. They should never create unnecessary controversy and must always exude confidence, especially when presenting the key elements of their opinions. Also remind your experts that eye contact is an important sign of confidence. Experts should look straight at the judge whenever questions come from the bench, and at the jury throughout most of the testimony.
Carefully review the use of each exhibit with your experts. Every exhibit should be meaningful, simple, and where possible, pleasing to the eye. Enlargements of photographs and large multi-colored charts should be used where helpful. But keep the number of exhibits to a manageable level; you do not want to intimidate the jury with too many charts, photographs and the like. Always carefully practice beforehand with your expert about how product defects and the mechanism of injury will be best demonstrated to the jury. These presentations must always be clear and simple.
Remind even your experienced experts that they must never seem arrogant, over-confident or "above the fight." They should never be condescending. The presentation should respect the intelligence of the jurors, but in understandable language. Acronyms, technical jargon, scientific terms and other arcana should be left outside the courtroom. Also, probe your expert for any damaging information that could come out on cross-examination. If it exists, you may want to deal with the subject on direct, and thereby keep the offensive. Consider practice cross-examination on key points to make sure that your expert has no further information or opinions harmful to your case.
Using Daubert as a Sword
In just the last three years, the threshold requirements for admissibility of expert testimony has changed significantly in federal courts. The United States Supreme Court's opinion in Daubert v. Merrill Dow Pharmaceutical, Inc., 113 S.Ct. 2786 (1993) precipitated these changes. In Daubert, the Supreme Court held that Rule 702 of the Federal Rules of Evidence required scientific expert testimony to be both "reliable" and "relevant." The Court elaborated, stating that Rule 702 requires the proffered testimony to be: (1) "scientific knowledge," (2) which will "assist the trier of fact to understand the evidence or to determine a fact in issue."3 The Court listed four non-exclusive factors to assist the trial court as "gatekeeper" in determining whether scientific evidence is relevant and reliable and, therefore, admissible: (1) whether a theory or technique can be and has been tested;4 (2) whether the theory or technique has been subjected to peer review5 and publication; (3) the technique's known or potential rate of error; and (4) the general acceptance of the theory or technique by the relevant scientific community.6 7
The role of Daubert was recently clarified in Compton v. Subaru of America, Inc., 82 F.3d 1513 (10th Cir. 1996). "The language in Daubert makes clear the factors outlined by the Court are applicable only when a proffered expert relies on some principal or methodology. In other words, application of the Daubert factors is unwarranted in cases where expert testimony is based solely upon experience or training." Id. at 1518. This is an important amplification of Daubert. In cases where your adversary has the advantage of a corporate client with in-house experts and testing facilities, he is the one most likely to introduce "testing" through his experts. In fact, more and more of late, a recurring tactic of major manufacturers defending product cases is to spring extensive testing on the plaintiff as close to trial as possible to minimize reaction and analysis time.
In such cases, combining Daubert and Compton will provide you with a powerful sword that you should not hesitate to wield. In many cases, your opponent's testing (perhaps done quick or dirty at the very end of a litigation) will not pass muster under the Daubert factors. Were the test methodology, protocol and procedures clear and generally accepted in the scientific community? Were the testing and testing methods subjected to peer review or publication? If not, under Daubert, your opponent's expert and the evidence of any testing run a very real danger of exclusion. Whereas under Compton, your experts (who are rendering opinions without reliance on tests but based solely on experience and training) are free to testify without rigorous review by the court or the threat of exclusion under Daubert.8
Bottom line: Consider a Daubert/Compton motion to exclude your opponent's experts and their testing whenever appropriate. And whenever your adversary drops a Daubert challenge on your experts, consider turning the challenge around. Add the reasoning of Compton and turn the sword on your opponent. In so doing, you serve your clients and protect your experts as best you can.
|| Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). |
|| For additional information, see R. Johnson, M. Eidson, Defective Product: Evidence to Verdict (1995, Michie Company). Portions of the following text were adapted from this new trial practice volume. |
||Daubert, 113 S.Ct. at 2795. |
||See also Chikovsky v. Ortho Pharmaceutical Corporation, 832 F.Supp. 341, 346 (S.D.Fla. 1993) ("as the Daubert Court instructed, 'knowledge connotes more than a subjective belief or unsupported speculation'"). |
||See also Stanczyk v. Black & Decker, 836 F.Supp. 565, 567 (N.D.Ill. 1993) ("One must consider whether there is peer review and publication of the technique"). |
||See also Lust v. Merrell Dow Pharmaceuticals, Inc., 1996 U.S. App. Lexis 16690 (9th Cir. 1996) ("the district court can exclude the opinion if the expert fails to identify and defend the reasons that his conclusions are anomalous"). |
||Daubert, 113 S.Ct. at 2796-97. |
||Compton v. Subaru of America, Inc., supra at 1518.|