Selecting, Preparing And Presenting The Expert Witness

B.  How to Find the Right Expert
The best way is through past experience.  For those less experienced, you may try another lawyer.  You can associate with another attorney who will bring intimate knowledge about the right experts and in addition an association can spread the high cost of trying these types of cases which can exceed $100,000.00.  There are broker firms who have a pool of experts and can be helpful in locating experts in many disciplines. You can also research technical articles and contact the authors.  Other sources include local and national litigation bar associations.  You can also try the Internet. 

III.  PREPARATION OF THE EXPERT 
In a products liability case the most important thing you can do to prepare your expert is to retain control of the product so that will allow your expert to analyze and inspect the product.  Sometimes you may need to hire investigators to find where the product is as well as hiring photographers, videographers, etc.  In a severe injury or complex case not having the product for your expert's inspection may well be the death knell of your case. 

A. Pretrial Preparation
Your expert can assist you in pretrial preparation by assisting you in discovery preparation as well as cross-examination preparation.  You should arrange to meet with your expert before the expert testifies and discuss with the expert all things that could come up in cross-examination.

 IV.  THE LAW

A.  State court
Pennsylvania Rule of Civil Procedure 4003.5 discusses expert witness testimony.  The Rule states:

(a)  Discovery of facts known and opinions held by an expert . . .  may be obtained as follows  

(1)  a party may through interrogatories require

(a) any other party to identify each person whom the parties expect to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and

(b) the other party to have such experts so identified by him

(c) the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.  The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by the expert.  The answer or separate report shall be signed by the expert.   

(3)  A party may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial except a medical expert as provided in Rule 44010(b) or except on order of court as to any other expert upon a showing of exceptional circumstances under which it is impractical for the parties seeking discovery to obtain facts or opinions on the same subject by any other means subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.    (1)  Scope of  Expert Report/Late Disclosure of Expert Report

(1)  The prejudice or surprise in fact of the party against whom the witness will testify;

(2)  The ability of that party to cure the prejudice;

(3)  The extent to which allowing the testimony would disrupt the orderly efficient trial of the case or other cases in the court; and

(4)  Bad faith or willfulness of the party advancing the testimony.

Our courts have repeatedly found that the preclusion of a witness's testimony is a drastic sanction.  E.g., Cooper v. Burns, 545 A.2d 935; Gill v. McGraw Electric Co., 399 A.2d 1095,      Pa. Super.      (1979). 

Fair scope of a report has been found to include opinions, while not directly expressed in a report, which may be inferred, implied or expected on the basis of the report or other information, e.g., Trent v. Troutman, 508 A.2d 580 (1986)  (in a medical malpractice case, disclosed opinions of the expert concerning negligence implied and allowed testimony concerning causation, although opinion on causation not specifically disclosed) as well as testimony concerning facts or documents supporting an opinion, e.g., Hickman v. Fruehauf Corp., 563 A.2d 155 (Pa. Super. 1989)  (reference to photographs not specifically mentioned in report), or additional opinions or facts which do not change the basic opinions, e.g., Cooper v. Burns, supra. (testimony concerning need for future surgery admissible where it did not change doctor's diagnosis of injuries).

Where there is surprise, the relevant inquiry extends to whether there was prejudice to the opposing party and the ability to cure that prejudice, in relation to the purpose of expert discovery providing sufficient notice of the expert's theory to enable the opposing party to prepare a rebuttal witness. E.g., Cooper v. Burns, supra.; Martin v. Johns-Manville, supra.  While previously undisclosed testimony of an expert witness has been precluded due to prejudice and inability to cure the prejudice, where the testimony of the opposing party's expert witnesses was previously taken by deposition and they were otherwise not available to rebut the new testimony at trial, e.g., Gill v. McGraw Electric Company, supra.; Sindler v. Goldman, 454 A.2d 1054 (Pa. Super 1982).  Lack of prejudice or ability to cure the prejudice has been found, and the expert testimony allowed, where the opposing party has an ability to present expert witnesses to rebut the testimony.  See O'Malley v. Peerless Petroleum, Inc., 423 A.2d 1251 (Pa. Super 1980); Kemp v. Qualls, 473 A.2d 1369 (1984).  Compare Curran v. Stradley, supra.; Gill v. McGraw Electric Company, supra; Sindler v. Goldman, supra., e.g., Feingold v. SEPTA, 517 A.2d 1270 (Pa. 1986); Curran v. Stradley, 521 A.2d 451 (Pa. Super 1987); Trent v. Troutman, 508 A.2d 580 (Pa. Super 1986); Gill v. McGraw Electric Company, 399 A.2d 1095 (Pa. Super 1979). 

Finally, it has also been found that, where an expert witness has been previously named, but a report or his full report not supplied, objection to his testimony at trial has been waived where there has been no motion to compel production of his expert report or a more detailed report.  E.g., Lenker v. Churnetski Transportation, Inc., 520 A.2d 502 (Pa. Super 1987), appeal denied, 533 A.2d 713. 

(2)  Expert Qualifications

Generally, an expert witness is qualified if, because of his skill, training and experience, he is better able to form an accurate opinion as to the matter under consideration than is the average man of the community, so that his opinion will aid the trier of fact.  E.g., Ferreira v. Wilson, 344 Pa. 567, 26 A.2d 342 (1942); Bessemer Stores, Inc. v. Reed Shaw Stenhous, Inc., 496 A.2d 762 (Pa. Super 1985).  A person whose profession or vocation deals with the subject at hand is entitled to be heard as an expert, leaving the value of his evidence to be tested by cross-examination and determined by the jury.  Wencheell v. Stevens, 30 Pa. Super 527 (1906).  One may be qualified solely by virtue of study or experience, or both.  E.g., Gottfried v. American Can Company, supra.; Wencheell v. Stevens, supra. 

An expert need not testify with regard to his area of specialization and in Pennsylvania, any licensed physician may, in the discretion of a trial judge, be qualified as an expert on any medical question.  Regan v. Steen, 331 A.2d 724 (Pa. Super 1974); Westinghouse Electric Corp. v. Workman's Compensation Appeal Board, 399 A.2d 1178 (1979); WCAB v. Branch Motor Express, 334 A.2d 847 (Pa. Commw. 1975). Psychologists have been acknowledged as qualified to express opinions on diagnosis, prognosis and causation of emotional disturbances.  E.g. Kravinsky v. Glover, 396 A.2d 1349 (Pa. Super 1979); In Re Adoption of Stunkard, 551 A.2d 253 (Pa. Super 1988).  Simmons v. Mullen, 331 A.2d 892 (Pa. Super 1974).  It is not essential that an expert witness be a medical practitioner to testify on organic problems.  E.g., Simmons v. Mullen, supra., Commonwealth v. Gallagher, 510 A.2d 735 (Pa. Super 1986)

B.  Federal Court 
The Federal Rules of Evidence, Rule 702, states as follows:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact and issue a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

In 1993, the United States Supreme Court held in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), that the Federal Rules superseded the previous Frye test that had required scientific expert testimony based on a scientific principle or discovery that has gained general acceptance in the particular field in which it belongs.  Frye v. United States, 293 F.1013 (1923).

The court noted that Rule 702's requirement that such evidence must assist the trier of fact to understand the evidence or to determine a fact and issue is a relevance inquiry.  I.e., the scientific evidence must fit a fact and issue.  The court also stated that the trial court is the gatekeeper.  It decides the admissibility of evidence using the preponderance of the evidence standard in Federal Rule of Evidence 104(a).  When determining reliability, the court enunciated four factors the trial court should consider.  While the court identified these specific factors, it added that they are not definitive.  “Many factors will bear on the inquiry and we do not presume to set out a definitive checklist or task.”  509 U.S. at 593.  Those four specific factors are:

(1)  Can the evidence be empirically tested?  Can the evidence be refuted? 

(2)  Has the theory or technique been subjected to peer review or publication? 

(3)  If the evidence at issue involves a scientific technique rather than a scientific theory is there a known or potential rate of error? 

(4)  The Frye general acceptance inquiry can be performed but is not required.

For example, the Second Circuit recently addressed the Daubert defense in McCulloch v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2nd Cir. 1995).  There, the plaintiff sued a glue manufacturer under negligence and strict liability theories, alleging that unventilated fumes from the glue had caused her to develop throat polyps and respiratory problems.  The plaintiff introduced testimony by two experts, an engineer and a doctor.  The engineer testified that the plaintiff had been within the “breathing zone” of the fumes.  The doctor testified that the fumes had caused the plaintiff's injury.  After a plaintiff's verdict, defendant appealed, arguing that the trial court had failed to perform its “gatekeeper” role under Daubert in that both experts had been unqualified to testify as experts and their opinions were not based on scientific knowledge.

Affirming the plaintiff's verdict, the Second Circuit rejected the defendant's argument that the engineer was unqualified because he had no formal education related to fume disbursal patterns and no experience performing or interpreting air quality studies.  Finding this argument ignored the expert's practical experience, the court noted he had based his opinion on an examination of ventilation safety materials, a review of the defendant's material safety data sheet, interviews with the plaintiff regarding her work area and his background and practical experience with ventilation and fumes.  Based on these factors, the court found the engineer had the necessary practical experience and academic training.

The court also rejected the defendant's contention that the doctor had not based his opinion on “scientific knowledge.” Citing Daubert, the Second Circuit noted that “scientific” implies a grounding in the methods and procedures of science, while “knowledge” connotes more than subjective belief or unsupported speculation.

In McCulloch, the doctor had based his opinion on his training and experience, his care and treatment of the plaintiff, her medical history, his own ruling out of other possible causes, and his reference to medical literature.  Disputes over the expert's credentials or methodology or a lack of textual authority for his opinion go to the weight of his testimony not to admissibility.  Accordingly, the Second Circuit concluded:

Trial judges must exercise sound discretion as gatekeepers. ... [the defendant], however, would elevate them to the role of St. Peter at the gates of heaven, performing a searching inquiry into the depth of an expert witness' sole. ... Such an inquiry would inexorably lead to evaluating witness credibility and weight of evidence, the ageless role of the jury. Id. at 1043; accord, Holbrook v. Lykes Brothers S.S. Co., 80 F.3d 777 (3rd Cir. 1996).

Quite often in science, an opinion will not be subject to actual testing.  Trial judges must differentiate between the Daubert screening of expert opinion based on “scientific knowledge” or “methodology” in the court's role when an opinion is based on the more typical range of factors, including the expert's education, experience and factual study.  Ordinarily, extensive experience and specialized expertise will augment the reliability of an expert's reasoning and methodology and will bear on the determination of reliability.  See, e.g., Joiner v. General Electric Co., 78 F.3d 524 (11th Cir. 1996).  Daubert will be satisfied when the expert demonstrates that the proffered opinion is based on education, research, ordinary methods of science and an examination of the facts relevant to the case at hand.  See, e.g., Holbrook, supra., 80 F.3d 777 (3rd Cir. 1996).

Under Rule 26 of the Federal Rules of Civil Procedure a witness who is retained or specially employed to provide expert testimony in the case must provide a written report.  Additionally, the qualifications of the witness including a list of all publications authored by the witness within the preceding ten years, the compensation to be paid for the study and testimony and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within four years must be disclosed at least 90 days before the trial date.

V.  Presenting the Expert 
Experts should dress like an expert.  They should not argue with the other attorney, yell, or refuse to answer questions.  Your expert should confidently explain, teach, clarify and simplify and should maintain eye contact.