Experts

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 389-432

HANDLING FEDERAL DISCOVERY

CHAPTER 12: EXPERTS

TASKS

Task 70 Determine Whether to Retain Experts

Task 71 Find and Retain Experts

Task 72 Maximize Use of Experts

Task 73 Make Expert Disclosures

Task 74 Propound Expert Discovery

Task 75 Respond to Expert Discovery

Task 76 Notice Expert Depositions

Task 77 Prepare Experts for Depositions

Task 78 Depose Experts

Task 79 Supplement Expert Discovery

FORMS

Form 24 Expert Witness Disclosure

TASK 70

Determine Whether to Retain Experts

I. WHAT AND WHY

A. An expert is someone with knowledge, skill, experience, training or education in a particular area. See FRE

702.

B. Experts may act in various capacities, including:

1. Testifying at trial to explain or give an opinion about matters requiring scientific, technical or other

specialized knowledge.

2. Consulting with counsel to help develop a case theme, understand technical issues and propound and

respond to discovery.

II. WHEN

A. Evaluate whether you need an expert at the outset of a case or as soon as possible to maximize the expert’s

assistance. Experts can be extremely useful in acquainting counsel with technical terms and concepts, helping

prepare pleadings, shaping litigation strategy and assisting in discovery.

B. Reevaluate your need for experts as the case progresses and new issues arise or your case theory

changes.

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TASK 70 EXPERTS

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C. Disclose information about experts who will testify at trial 90 days before trial. FRCP 26(a)(2)(C). See

Task 73. If y ou fai l to discl ose yo ur experts as required, the court may not allow them to testify.

III. HOW

A. Review the rules pertaining to experts.

1. FRCP 26(a)(2) addresses pretrial disclosure of experts and permissible expert discovery.

2. FRE 702 establishes when expert testimony is admissible and who qualifies as an expert.

a. Expert testimony is permitted where scientific, technical or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine an issue.

b. A witness may be qualified as an expert by knowledge, skill, experience, training or education.

3. FRE 704 provides that otherwise admissible expert testimony may not be excluded merely because it

goes to an “ultimate issue.” For example, an expert in a medical malpractice action may testify that the

defendant doctor was negligent. The court may not exclude the testimony on the ground that the expert

is usurping the trier of fact’s role by testifying on an ultimate issue.

B. Determine the type of experts you need.

1. Review your annotated proof of fact (see Task 4) to identify issues for which an expert’s assistance would

be helpful. For example:

a. A tort claim may require an accident reconstruction expert, a doctor, a rehabilitation expert or an

economist.

b. A contract claim may require an expert in the subject matter of the contract, a business broker or an

accountant.

c. In professional negligence/malpractice cases, expert testimony is often required by law.

2. Consider using experts in:

a. Cases which present complex, technical issues, such as products liability, securities fraud and toxic

contamination.

b. Any case in which the jury would benefit from help understanding the issues, even if the subject is

not completely arcane. For example, an expert can help explain damage calculations even though

most jurors understand medical bills and lost wages.

C. Consider using experts for strategic reasons, such as to:

1. Rebut your opponent’s experts. Juries tend to give more credence to expert witnesses than to lay

witnesses (even if the testimony is the same).

2. Establish your case’s credibility. An expert adds authority and weight to your evidence.

IV. PRACTICE NOTE

A. Experts are often expensive. However, expert testimony can make or break a case. If your client’s budget is

limited, consider:

1. Using the client’s employee or colleague rather than retaining a “professional” expert. While such

experts may appear biased, professional experts may appear as hired guns who will say anything for a

fee. This is a judgment call for you to make.

2. Selecting an expert with a broad range of knowledge and experience who can testify on numerous issues.

Find one good car expert, rather than a brake expert, a steering expert and a carburetor expert.

B. Keep in mind Daubert v. Merrell Dow Pharms., 113 S. Ct. 2786 (1993), where the U.S. Supreme Court

ruled that a trial court must act as a “gatekeeper” in determining whether an expert should testify. If your

consultant’s opinions are based on questionable theories, study the Daubert opinion before deciding to

use the expert at trial. Lawrey v. Good Samaritan Hospital, 751 F. 3d 947 (8th Cir. 2014 (expert testimony

that made no sense in light of facts of case was excluded); Stollings v. Ryobi Technologies, Inc., 725 F.

FIND AND RETAIN EXPERTS TASK 71

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3d. 753 (7th Cir. 2013) (expert testimony permitted where expert correctly used valid methodology, even

though some data used was a rough estimate); Miller v. Pfizer, Inc., 356 F.3d 1326 (10th Cir. 2004) (court

concluded that plaintiff’s expert did not use generally accepted methodology in forming opinions; expert’s

testimony excluded at trial); Farrar & Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc., 69 Fed. Rules Serv.

3d 767 (E.D.N.C. 2007) (in proposed class action, motion to exclude testimony at class certification stage

denied as premature Daubert challenge; party not required to prove merits of case while seeking to meet

threshold requirements for class certification). While you may sometimes need to use an expert outside

the mainstream, be sure you understand the risks. Keep in mind Daubert when evaluating your opponent’s

experts as well. See Soroka v. AMTRAK, 49 Fed. R. Serv. 3d 710 (S.D.N.Y. 2001) (expert allowed to testify

when opposing side made no Daubert objections). You may offer expert testimony at a Daubert hearing

to show why your opponent’s expert should not be permitted to testify. Arble v. State Farm Mutual Ins.

Co., 78 Fed. Rules Serv.3d 869 (D.N.M. 2011) (expert was retained solely to testify at Daubert hearing

on qualifications of another expert, and would not testify at trial). Note also that the court may impose

sanctions, including excluding expert testimony, for failure to attend a Daubert hearing. Downs v. Perstorp

Components, Inc., 126 F. Supp. 2d 1090 (E.D. Tenn. 1999).

TASK 71

Find and Retain Experts

I. WHAT AND WHY

A. Once you determine that you need an expert (see Task 70), you must find and retain one.

B. Consider retaining as many experts as you can afford.

1. Using experts to advise you pretrial can provide you insights you might otherwise miss.

2. Using an expert to testify at trial can help convince the jury to find in your favor.

3. Practically speaking, the party with the best experts has an advantage over other parties.

II. WHEN

A. Begin looking for experts at the outset of the case or as soon as you realize you need them, and select them as

soon as possible. Experts can be extremely useful in acquainting counsel with technical terms and concepts,

shaping litigation strategy and assisting in discovery.

B. Retaining particular experts early ensures that other parties will not use them. This can be important when

you want the best expert or when few qualified experts in a particular area are available.

C. You must disclose information about testifying experts 90 days before trial. FRCP 26(a)(2)(C). See Task 73.

Retain experts far enough in advance of the disclosure deadline to allow them sufficient time to review the

evidence, interview witnesses, conduct tests, meet with you and, if appropriate, prepare a report.

III. HOW

A. Contact potential experts. Good sources include:

1. Your client. If the issue involves your client’s business, your client will probably be able to recommend

some candidates.

2. Other attorneys. Ask for recommendations from attorneys who practice in that area of law, particularly

if you are new to the field.

3. Industry, professional or trade associations and unions.

4. Trade journals.