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What Qualifies a Witness as an Expert?

Witnesses are generally divided into two categories: fact witnesses and opinion witnesses. The former category involves witnesses with first-hand knowledge of events or facts related to the trial. Opinion witnesses, on the other hand, provide their opinions in order to help resolve the trial.

An attorney and his law firm appealed a judgment in favor of the plaintiff, on behalf of nine other former clients (“former clients”).  The former clients claimed that he improperly deducted certain expenses from their recoveries when they settled personal injury suits against a pharmaceuticals company.

The attorney represented the former clients in litigation for personal injuries from taking the prescription diet drugs fenfluramine and phentermine—commonly known as “fen-phen.”  A federal multidistrict litigation (MDL) court certified a nationwide class action and designed the procedures to be followed by litigants who wanted to opt out of that and pursue individual claims.  One of the requirements was that opt-out litigants had to establish their eligibility to sue by taking an echocardiogram which resulted in a “FDA-positive.”  The attorney involved set up a nationwide echocardiogram program supervised by a board-certified cardiologist at a cost of more than $20 million.  More than 40,000 potential clients were screened and roughly 8,000 of them had “FDA-positive” echocardiograms that allowed the attorney to pursue their individual. His clients signed written contingency fee agreements that allowed him to recover reasonable expenses from each client’s claim. The attorney ended up with fee agreements with 8,051 clients.

A Pennsylvania high school’s insurer brought a subrogation action for strict liability and breach of warranty against the manufacturer of a refrigerator that allegedly caused fire at the high school.

The Appellant is this case was an insurance company (“Indemnity”), which was the subrogee of the Unionville–Chadds Ford School (“School”).  Indemnity brought suit against an appliance manufacturer alleging strict liability and breach of warranty in the U.S. District Court for the Eastern District of Pennsylvania.

In the fifth lawsuit between the parties’ litigation that has lasted nearly a decade, the respondents argued that the district court erred by dismissing or restricting their claims against and expert witness and some of the defendants based on absolute privilege.  The Minnesota Court of Appeals held that an expert witness who submits an affidavit in the course of a legal proceeding is absolutely immune from liability under the absolute-privilege doctrine.

Florida Governor Rick Scott recently signed controversial legislation which overturned the long-standing thresholds as to what type of expert witness testimony is admissible in state courts.

HB 7015 restricts Florida state courts concerning the admission of expert testimony by abolishing the 90-year old Frye standard.  Frye allowed scientific evidence to be admitted if it was “generally accepted” as being reliable within the relevant scientific community. The new legislation sets out more rigorous criteria.  The shift is to Florida’s standards for evaluating the admissibility of expert witness testimony away from the Frye standard to the Daubert standard, which is used in federal courts and other states.

On June 14, 2013, the nation paused to pray and remember the unspeakably horrific shooting, a massacre that claimed 26 lives, on December 14, 2012, at the Sandy Hook Elementary School, in Newtown Connecticut. The cruel irony, as legions of the country’s experts, myself included, continue to engage in differential diagnoses and soul-searching for answers as to who and what went wrong, is that Sandy Hook Elementary School probably could not have done anything more, different or better, to protect its students. Short of constructing a walled-in campus inside of which students would receive provisions and other necessities from the outside.

Kiobel v. Royal Dutch Petroleum was a landmark case before the U.S. Supreme Court, involving questions of international law, jurisdiction and legal fora, and what attorneys should expect, when international human rights issues against corporations are adjudicated in U.S. courts.  The Supreme Court, in a unanimous opinion, discussed the issues at hand and, in so doing, helped put both American plaintiff and defense attorneys on notice, as to what to expect and how to best plan for cases involving corporate governance and international law.  See, e.g., Rich Stamp, “Supreme Court Observations: Kiobel v. Royal Dutch Petroleum & the Future of Alien Tort Litigation,” Forbes (Apr. 18, 2013).

Florida, of late, has had many recent trends in civil litigation and requests for new legislation, particularly in the context of expert witnesses.  See, e.g. Helicon Foundation Repair, “Fraudulent Sinkhole Claims Increase As Geologists Blame Current Weather Trends,” Seffner, FL: Sinkhole News, (retrieved Jun. 3, 2013).  Many Florida residents have “been accused of spending insurance payouts on items not connected to foundation and cosmetic home repairs dues to sinkhole claims,” and, moreover, “insurance companies are requesting….legislatures change…laws concerning sinkhole claims.” Id. A “sinkhole” is a phenomenon, whereby groundwater dissolves and creates a void.  See Claims Journal, “Florida Property Insurer’s Board Reviewing Sinkhole Rates” (Oct. 13, 2011).

In a recent case, the Connecticut Supreme Court held, inter alia, that trial court did not abuse its discretion in allowing testimony by an expert who was disclosed by the plaintiff several months after the discovery scheduling deadline and one week before jury selection began.

A condo resident, who was also president of the condominium association’s board of directions, brought claims including negligence per se against the Condominium Association (condo) and the Management Company (management company, hired by the association) for injuries she sustained when she missed a concrete step while coming down from a roof deck of condo building. The plaintiff brought an action, alleging, inter alia, that the defendants negligently maintained the original step in violation of the building code.

One of the most pressing issues before attorneys and courts has arisen in the wake of a highly unclear decision issued by the Supreme Court, concerning the Confrontation Clause of the Sixth Amendment to the Constitution, and whether expert testimony is permissible under that Clause.  See Williams v. Illinois, 132 S.Ct. 2221 (Jun. 28, 2012).  After the Supreme Court issued a 5-4 decision, with two separate pluralities (4 concurring opinions) and one lone dissent, the lower courts have had a trying time applying Williams to expert testimony.  For the litigator, however, it is important to understand what Williams did and didn’t say, what lower courts are likely to do, and why all of this greatly affects experts.  Whether the case at hand is civil or criminal, Williams has been discussed and grappled with by nearly every lower court and, accordingly, regardless of practice area, its potential implications should be made clear to every attorney.

The “exceptional circumstances” test is used to determine if a party can depose an examining physician who is not designated by the other party as an expert witness.  In this recent case from Nevada federal court, a mortgagor sought to depose a non-designated psychologist who had examined the mortgagor pursuant to court-ordered independent medical examination.  The defendants filed emergency motion for protective order and motion to strike mortgagor’s expert designation of the psychologist.

Recently the Second Circuit Court of Appeals in a per curiam opinion said that district court was entitled to disregard the contradictory new testimony of physician, as expert witness, relating to his knowledge of patient taking drug, as it was undoubtedly manufactured to avoid summary judgment against the plaintiff.

One might think that it would be permissible for attorneys to have a private interaction with their expert, without having to reveal every scrap of paper containing a notation regarding the case. However, under the former Federal Rule 26, this was not always the case.

Often times, the considerations in jury deliberations are unrelated liability or fault, and may focus on the fixed amounts, perceived as adequate compensation, to each juror. Some jurors may have preconceived notions that attorneys ask for more than is required to adequately compensate an injured party. Some jurors may consider factors such as attorney’s fees, taxable portions of award amounts, or the Plaintiff’s Insurance, to provide a framework for arriving at an award amount. Whatever factors a juror utilizes to reduce or supplement an award amount, this perception of a base award amount must first be established.

A recent ruling by the Eighth Circuit Court of Appeals says that the National Fire Protection Association’s (NFPA) Guide 921 is a reliable investigation method of a professional organization, but it’s not the only reliable way to examine a fire. Expert testimony based on other methods is still acceptable.

When the Supreme Court heard arguments in Comcast Corp. v. Behrend last week, there was a great deal of talk about the Daubert test for admissibility. Because the Court’s ruling could have enormous impact on how expert witnesses are evaluated for class action litigation, it is worth reviewing what really Daubert requires, especially as it relates to the landmark Wal-Mart Stores v. Dukes case from last year.