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The main reason expert witness testimony is presented is to offer an expert opinion. Accordingly, expert witnesses can anticipate being closely cross-examined on their opinions. They should also expect to be closely questioned on the bases of these opinions because an expert opinion is only as strong as the facts and reasoning upon which it is based. Questions in these areas are best blunted by carefully and honestly forming an opinion that is based on reliable methodology, a thorough investigation, and solid facts.
The specific
areas an expert witness can expect questioning on are dealt with in the sections below.
These include the following:
·
The factual assumptions upon which the expert opinion is based.
·
Conflict between the expert’s opinion and that of other,
potentially more qualified, experts.
·
Any underlining or notations made by the
expert in the documents
she used to formulate her opinion.
·
Any information or records that the expert did not have available
when forming her opinion. The
cross-examiner will try to show that this information may have changed the
expert’s opinion.
·
The parts of documents provided to the expert that she did not
review. These may have contained
important information that the expert failed to consider.
·
The numbers, figures, and formulas used by the
expert.
·
Any passage of time between the incident in question and the
expert’s examination or inspection. Conditions
or circumstances may have changed.
·
The amount of time spent on the case.
Did the expert pad his bill? Was there a rush to judgment?
·
Reliance on other experts’ opinions or reports.
Can these be verified? Were
they reliable?
·
The degree of certainty the expert maintained when expressing his
opinion or factual assumptions. Was
it merely possible? Probable?
How likely is it that the expert is mistaken?
·
The standard of care the expert applied if this is a professional
malpractice case. The expert cannot
reliably testify as to the standard of care if she does not completely
understand the standard of care as it applies in the jurisdiction in question.
Daubert/reliability of proposed testimony
Experts should be aware that their opinions are likely to
be closely scrutinized under the Daubert
doctrine to see if they are not only relevant but reliable.[1]
Pursuant to the Daubert line of cases[2]
and Federal Rule 702, the judge will act as a gatekeeper to screen out and
exclude unreliable expert testimony and reports. The judge will consider several
factors, including:
1.
whether the theory or technique used by the expert can be, and has been,
tested,
2.
whether the theory or technique has been subjected to peer review and
publication,
Procedurally, what will usually happen is that opposing counsel will make a motion in limine, which asks the judge to exclude the expert’s testimony for failure to comply with the requirements of Daubert and Federal Rule of Evidence 702. The judge will then convene a hearing on the motion. At this “Daubert” hearing, the expert witness will be questioned closely (out of the jury’s presence) on the issue of the reliability of his testimony.
Even if
the judge allows the expert’s testimony into evidence, questions regarding the
reliability of the expert’s opinion and methodology may still be allowed in
front of the jury because these questions go to the weight to be given to the
testimony. An expert opinion will
survive Daubert challenges if the
opinion is based upon reliable methodology and if the expert spells out this
methodology clearly.
The cross-examination the expert will likely face in Daubert hearings
can be detailed, exhaustive, and very challenging. The following example involved a product liability action
brought against the manufacturer of a lift truck.
The expert opined in his report that powered fork positioners were
available and widely used in 1991. An
excerpt of the cross-examination of the expert on this issue follows.
Example 6.51: Expert cannot name any
powered fork positioners that were available in 1991
Q.
To your knowledge, does
the Raymond Corporation design and manufacture a powered fork positioner?
A.
(Pause.)
Near as I can recall from Mr. Rogers’ deposition, they did not.
Q.
Would you agree then if
they did not so design or manufacture a product, they would have to go out and
get one on the open
marketplace to supply for a truck like the model 40?
A. Yes.
Q.
Are you aware of the
existence of one or more manufacturers of powered fork positioners in the
country or the world?
A. Yes.
Q.
More than one?
A.
I think so.
Q.
To your knowledge, are
there different sizes, shapes, weights, and configurations of powered fork
positioners that are available in
the marketplace?
A. Sure.
Q.
Are you prepared to
identify for me the single type, model, design, configuration, size, weight, of
powered fork positioner you
contend the Raymond Corporation should have put on
its Raymond model 40 forklifts as standard equipment?
A. No.
Q.
Why not?
A. Didn’t think it was
necessary. It’s a feasible thing.
I didn’t think it was necessary to go into the details.
…
Q.
You’re not prepared to
select which one or ones are available in the open marketplace or were available
in the marketplace in 1991
when the subject Raymond model 40 was produced that
would satisfy your engineering muster or your engineering test?
A. At this point, no.
There is just no need. There
was no question that it was feasible.
Q.
Is there a single powered
fork positioner that you can identify for me today that was available in 1991,
which if installed on the
Raymond model 40 forklift, you would say that truck is
no longer defective in design?
A. Not a specific model, no.
Q.
How about a manufacturer?
A. No.
Lesson:
The preceding example was based upon the case of Milanowicz
v. The Raymond Corporation, 148 F. Supp. 2d 525 (D. N.J. 2001). The court
found that because the expert’s testimony was unreliable, it was inadmissible.
The court stated:
Stephens
also did not find adequate support for his conclusions in the relevant
literature. While he claims to have
reviewed a number of manuals and articles, the only citations he provides in his
report are for the rather uncontroversial propositions that the elimination of
identifiable, foreseeable hazards is a fundamental concern in industrial design
and that users be warned of those hazards which have not been eliminated.
(Pls.’ Opp. Br. Ex. B at 7-8). As
he testified at his deposition, he used these references as the “foundation”
for his report. (Def.’s Supp. Br.
At 235). However, he conceded that
he [had] never seen a technical publication or any other document which
criticized lift trucks such as the Raymond Model 40 for not utilizing powered
fork positioners were a necessary safety feature.
(Id. at 184). In
short, beyond general design principles, Stephens identified nothing in the
literature which would suggest peer review of his conclusions.
The
central contention of Stephen’s report, and thus of Plaintiff’s case, is
that, because powered fork positioners were available and widely used in 1991,
Raymond should have incorporated this device into its Model 40 lift truck.
(Pls.’s Opp. Br. Ex. B. at 8; Opp. Br. At 18).
Leaving aside Plaintiffs’ mistaken contention that an expert’s
experience is sufficient to satisfy Rule 702, Stephens fails to adequately
substantiate his contentions that powered fork positioners were available and
widely used in 1991. At 538.
Experts involved in this type of high-stakes litigation should be familiar with Daubert
and the cases that explain its holding. It’s
best to prepare for intense scrutiny of one’s expert report, deposition, and
proposed trial testimony. Retaining
counsel should help the expert prepare for this intensive cross-examination.
Example 6.52: No studies; investigation
based on mere observation
Q.
What do you mean when you
say there is, quote, high potential for contamination during fueling, closed
quote?
A. Well, you’ve got to take
your nozzle. It’s got fuel under
pressure behind it. You’ve got to
run it over the top of the step going in
and coming out.
If you’re a little lax or slow or just don’t give a damn and you got
fuel pouring out of the nozzle as you’re going in
and out, you really got a
lot on the step.
Q.
What studies have you made
to determine whether the potential for that is high or low or nonexistent?
A.
I haven’t done any
studies.
Q.
What investigation have
you made?
A. Just normal observance of
people and what they do when they fuel vehicles.
Q.
Now, tell us, please, what
testing helps you conclude that there could have been a light coating of diesel
fuel on the steps to the
truck?
A. The application of diesel
fuel to aluminum, the exposure of the aluminum for a number of days to
reasonably comparable weather
conditions.
Q.
So, quote, this coating
would have resulted from fuel spillage during fueling of the truck on Friday
[the day of the accident], period, closed quote.
A. Yes.
Q.
What is the basis for
saying that the truck was fueled on Friday?
A. Well, there is no factual
basis for that. Let’s just say
that we made an assumption that the truck was run on Friday. Maybe it was
run on Saturday and that the truck was fueled up
for the Sunday morning run…
Q.
Did you conduct, as a part
of your investigation, make any effort to determine why Mr. Fedor did not detect
the diesel fuel on the
step before he fell.
A. Good question.
I don’t know why he wouldn’t have.
You know, could be wind conditions.
I don’t know.
Q.
Did you make any efforts
to determine if there was any amount of diesel fuel on the step at the time that
Mr. Fedor performed his
required pretrip inspection why Mr. Fedor did not detect
the diesel fuel on the step before he fell?
A. I have no idea.
Lesson:
In the above example, the expert’s testimony on the issue of design defect
regarding the fuel port location was excluded at a motion in limine.
For
additional information about the above example, see Fedor
v. Freightliner, Inc., 193 F.Supp.2d 820 (E.D. Pa. 2002).
Example 6.53: No testing, test results,
prototypes, or publication on proposed alternative design
Q.
As I understand it, sir,
you offer two proposed failsafe designs for disposable butane cigarette
lighters, correct?
A. Yes.
Q.
According to you, a
child’s ability to operate the lighter would be made extremely difficult by
your design?
A. Yes.
Q.
Very difficult and
failsafe are not the same thing, correct?
A. Yes. But it is extremely unlikely a child could operate the
lighter.
Q.
That’s not failsafe, is
it sir?
A. No.
Q. Have you tested your
design to show it can be built?
A. No.
Q.
Have you provided [a]
drawing of the design?
A.
No.
Q.
Have you provided a
design, prototype, or test results for your locking latch?
A. No.
Q.
Have you developed or
tested prototypes of lighters embodying your alternative designs or identified any
product in the
marketplace utilizing these designs?
A. No. It is not practical for a design expert like myself in a
child’s personal injury case to develop a working prototype of every
design
alternative to the product which I am proposing.
Q.
So, your answer is no?
A. A prototype like you are
suggesting would cost $20,000–$40,000 to build.
Q.
So, your answer is no?
A. That’s correct.
Q.
Do you have any test
results for your theory that your design would actually disable the lighter if
the safety feature was removed?
Q.
You stated earlier that
your opinions were based on Bic’s patents?
A. Yes.
Q.
In fact, your opinions are
based on your revisions, modifications, and adaptations to these patents,
correct?
A. Yes. But these were only small and minor changes.
Q.
Not unlike the minor
modifications to an existing skywalk design made in the 1981 collapse of a
skywalk in which 114 people were
killed?
A. Counsel, I am not aware of
the details of that 1981 accident.
Q.
Have you written or
published any articles describing your theories?
A. No.
Q.
You would agree that you
have not tested a prototype of your design, tested a product in the marketplace
that embodies your design, or reviewed test results performed by others on your
proposed designs?
A. That’s true.
But I still believe they would work.
Q.
I am sure that you do.
Lesson:
Prior to agreeing to testify in product liability cases, experts should attempt
to make sure that their proposed testimony would meet the reliability standards
of Daubert.
The intense scrutiny their testimony is likely to bring means that
additional testing, prototypes, or designs may be necessary to ensure the
admissibility of the testimony. The
expert should review these Daubert
issues in depth with retaining counsel prior to accepting the assignment.
A frank discussion of the financial resources of retaining counsel, his
budget, and expectations is advisable as well.
The above example is based on the case of Colon
v. Bic USA, Inc., 2001 WL 1631402 (S.D. N.Y. 2001).
An expert’s opinion is only as good as the factual
assumptions upon which it is based.
Experts should anticipate that they will be cross-examined on the assumptions upon which
they based their opinion(s). The line of questioning by counsel will usually include:
· questions eliciting all the assumptions the expert used and
· questions about the accuracy or the validity of these assumptions.
Please consider the following
example:
Example 6.54:
Multiple assumptions of future events
underlie opinion
Q.
One of your assumptions, I
assume, is that Mrs. Schaible would continue to want to work during all of those
years as opposed to being a housewife and mother?
A. Yes, for the years after
she would be age 42.
Q.
And, of course, if for one
reason or another she decided she didn’t want to work that would affect your
calculations, would it not?
A. That’s correct.
Q.
It is one of your
assumptions that would continue throughout her working life?
A. Yes.
Q.
Even after they got in
their forties and fifties, your assumption was that she would still continue?
A. That’s correct.
Q.
She wouldn’t keep any of
her own earnings for herself [f]or whatever purpose, they would all go other
than the 30 percent that you subtracted for the cost of her maintenance, one of
your assumptions was that all of it would go to Mr. Schaible or at least he
would receive the economic benefit of that?
A.
I assumed beyond the 30
percent, right.
Q.
One of your assumptions, I
assume, was that the marriage would continue during that period?
A. Yes. All the indications I had it was a happy marriage.
Q.
But that was one of your
assumptions?
A. Based on the information I
have.
Q.
And one of your
assumptions, I assume, also was that Mr. Schaible would not remarry and
everything would remain the same up to his own death?
A. Yes.
Q.
Another one of your
assumptions was that Mrs. Schaible would continue in good health and be able to
work?
A. That’s correct.
Q.
Will you agree, Mr. Tansky,
there is really no way you can say for sure any of the assumptions you made and
upon which your opinions were based are valid with reference to this particular
individual other than your opinion?
A. Could you restate that
question?
Q.
Okay, I can try, anyway.
Would you agree there’s really no way you can say, talking about you,
now, for sure, that any or all of the assumptions that you have made and upon
which your opinions are based, are valid, or would turn out to be valid with
reference to this particular individual?
A.
In my opinion?
Q.
No, I’m not asking for
your opinion, I’m asking whether there’s any way you can say they will be
valid.
A. No, things might have been
better or worse economically.
Q.
So, what we are saying,
again, you don’t have a crystal ball, you don’t know what is going to happen
in the future or what would happen with reference to any one specific
individual?
A. That’s correct.
Lesson:
Counsel
in the above example painstakingly went through the many assumptions the expert used to reach his conclusions and opinion.
The expert appeared to be surprised and ill-prepared to discuss his
assumptions. The expert did not
reply artfully to the validity question and made no attempt to support his
opinions. He could have replied to
the last question: “Counsel, I based my assumptions and opinion on the facts.
As such, they are valid and accurate.
The reason we make assumptions based upon the facts is to as accurately
as possible reach conclusions and opinions.
I don’t have a crystal ball. That
is why factual, accurate assumptions are vital to reaching valid opinions.”
This
example is based upon the case of Schaible
v. Myers, 311 N.W. 2d 297 (Mich.1981).
The court found the cross-examination was permissible and reasonable and
explained:
We
conclude that the Court of Appeals erred. The
jury was not told to take into account the possibility that the plaintiff might
remarry. Rather it listened to an
exposition of the many assumptions upon which the expert witness relied in
making his calculations of the plaintiff’s economic loss.
Such an exposition is necessary to an intelligent understanding and
evaluation of the worth of the expert’s opinion. At 299.
Cross-examining counsel may attempt to get an
expert to
change his opinion because it conflicts with one or more opposing experts’
opinions. Counsel may take one of
four approaches:
· Because two, three, four, or more different experts have different opinions, a “reasonable” expert would consider changing his opinion.
· Opposing experts are more qualified on this particular issue. For example, the other experts are specialists, thus a “reasonable” expert would defer to these opinions.
· The expert’s opinion is out in left field because it stands in stark contrast to many experts, treatises, etc.
·
The expert examined the plaintiff on only one occasion, but the
examining physician saw him thirty-two times over a period of four years.
Isn’t she in a better position to opine about the plaintiff’s
condition?
Effective
experts stick by their
honest opinions and are prepared to justify why their opinions are just as
valid, reliable, and worthy of acceptance as any others.
Please consider the following examples.
Example 6.55: “Would another expert’s
different opinion change your opinion?”
Q.
Doctor, if radiologists
had read the same x-rays that you—and had a different opinion than you did,
would that in any way change your opinion?
Ms. Keeley:
Objection.
The Witness:
I’m not certain why it should, because I had the opportunity to look at
the x-rays myself.
…
Ms. Keeley:
Objection, hearsay.
The Witness:
You know, you’re—you’re creating a hypothetical situation and the
answer is, is that in this particular case, I had the opportunity to review the
x-rays. I sat down with all of them
together which perhaps if the radiologists had reviewed them they didn’t have
the opportunity to look at all of them together.
And there would be no reason for me to rely on somebody else’s opinion
when something’s right in front of me.
Lesson:
Experienced
experts are not afraid to stand up for their opinions and point out why their
opinions are just as valid, if not more valid, than those of opposing experts.
In the above example, the expert stood his ground and gave a good
explanation of why he might have been in the best position to offer an opinion.
For
additional information about the above example, see Daisey
v. Keene Corporation, 633 A.2d 979 (N.J. Super. A.D. 1993).
Example 6.56: None of the 5 other experts diagnosed malingering
Q.
Now, Doctor, you’ve
reviewed the medical records of Dr. Goff?
A. Yes.
Q.
And he didn’t make a
diagnosis of malingering?
A. That’s correct, he did
not.
Q.
Similarly with Dr. Finley?
A. That’s correct.
Q.
And, in fact, it was his
opinion that she was not malingering?
A. That’s right.
Q.
Dr. Lord, he didn’t make
a diagnosis of malingering?
A. That’s correct, he did
not.
Q.
And nor did Dr. Cherry,
Dr. Manlove?
A. That’s correct.
Q.
None of the medical
professionals, either physical medicine professionals or mental health
professionals, have made a diagnosis of malingering other than yourself?
A. That’s correct.
Q.
So you would agree with
me, you’re the first medical professional engaged in this matter to make a
diagnosis of malingering?
A. Yes, that is correct.
Q.
And you’ve never
physically examined her?
A. That’s true.
Q.
And you don’t practice
physical medicine?
A. No.
Q.
And you’re not
suggesting that this injury, this admitted injury, didn’t occur, are you?
A. No, I’m not suggesting
that.
Lesson:
Despite the contrary opinions of five other experts, the expert in the above
example did not argue with counsel nor did he change his opinion.
Note that counsel did not ask him why
he thought he was correct and the other five experts were wrong.
Experts generally base their opinions to a large degree on
documents that they have reviewed. Experts who note, highlight, or underline
records or reports should expect to be cross-examined about their actions.
Counsel will ask them why they selected a few specific sections to
underline or highlight. To avoid this type of cross-examination, experts are
well-advised to refrain from marking the documents upon which their opinion is
based. It may be better practice to
make notations on removable paper tags.
Example 6.57: “Why did you choose that
phrase and underline it in red?”
Q. The attorney tells you
that and states an opinion that the MRI showed evidence of disc protrusion.
Correct?
A. Yes, sir.
He again; I’m not here to defend the attorney, what I’m simply saying
is what the attorney’s letter is, is a summary of the medical records which
include the diagnosis rendered by other physicians.
Q.
He also mentions on the
first page of his report that his client’s tires had spikes in them that he
believes were laid down by the picketers. Do
you see that in the first page of his four-page letter to you?
A.
Yes,
sir.
Q.
Why is it important for
him to include that information to you? Do
you know why?
A. You’d have to ask him,
sir. I don’t….
Q.
Do you think that was
important in coming up with your opinions and conclusions?
A.
I don’t think it was
relevant at all, sir.
Q. Then why did you underline
it in red on the letter that is contained in your file?
A. Why did I underline it in
red?
Q.
Right there you underlined
that particular phrase in red right at the bottom of that first page.
A. Probably went through here
and underlined various articles in there as I wrote it.
Q. I’m trying to figure out
why you picked that one phrase on the one page and underlined it in red.
A. I can’t tell you why,
sir. I did it at the time I did it.
Maybe I thought it was an interesting observation.
So as I read through his letter, I underlined various things. I cannot
give you the exact thought process why I did it, sir.
Lesson:
Experts are better served when they do not underline, highlight, mark, or
otherwise annotate documents that they review.
If an expert realizes that this was done previously in the case, she
should prepare for the inevitable questions during cross-examination.
This expert gave a believable answer, namely, “I can’t tell you why,
sir. . .Maybe I thought it was an interesting observation.”
It is common for retaining counsel to not provide an
expert with all of the relevant documents in a case.
Unfortunately, experts who do not review all the records in a case or who
do not have access to them can expect to be cross-examined closely on this
issue. Counsel will try to show
directly, or by implication, that because the expert did not have all the facts,
the assumptions on which she based her opinions are incomplete or flat out
wrong. The more records that were
not reviewed, the more suspect the expert’s opinion. To avoid this type of cross-examination, experts should
insist that retaining counsel provide them with all relevant documents.
Please consider the following example.
Example
6.58: Expert has not reviewed many records
Q.
Dr. Rungee, have you
reviewed the records of Dr. Garvin and Dr. Seshul at Baptist Hospital?
A. I have not.
Q.
Okay.
Have you reviewed the records of Baptist Care Center as they relate to
Mr. Clifford Charles Leverette?
A.
I have not.
Q.
Have you reviewed the
records of HealthSouth, Dr. Richard Lisella, and Tammy Morton, PT, as they
relate to Clifford Charles Leverette?
A. No, I have not.
Q.
Have you reviewed the
records as they relate to Mr. Clifford Charles Leverette of the Bedford County
Medical Center, Dr. Ilarde, Knoblach, Galvez, Clark, and Tamula?
A. I have not.
Q. Have you reviewed the
records of Dr. Thomas Woolridge as they relate to Mr. Clifford Charles Leverette?
A. I don’t remember all
these names.
Q. I didn’t see it in there
earlier.
A. No, I have not.
Q.
Okay.
Did you review the records of the Williamson Medical Center as they
relate to Mr. Clifford Charles Leverette?
A. Who would be the
physician?
Q.
Doctors Metzman, McNamara,
and Himmelfarb.
A. No.
Q.
What about the records of
Nashville Diagnostic Imaging, Dr. William Witt?
A. Is that his myelogram?
Q.
It’s an MRI.
Here it is. It’s this one.
Have you seen that?
A. I have not.
Lesson:
The expert who does not have access to all relevant case materials and has not
reviewed them is at a serious disadvantage during cross-examination.
Because he has not seen the records, he cannot honestly testify as to how
the records would affect his assumptions and opinions.
Experts are much better served by insisting on receiving all the records before they render an opinion.
Where certain information was not reviewed, this should be honestly
acknowledged, as above.
When an expert is provided with or simply chooses to review
selected portions of the record, he becomes vulnerable to cross-examination.
An opinion based on incomplete or erroneous assumptions can easily be
shown to be suspect. To blunt such
challenges, experts should insist on reviewing as much information as is
reasonably feasible. Please
consider the following examples:
Example 6.59: Counsel did not send over
all the records
Q.
Your opinion is that the
shooting was foreseeable due to the inadequate training of the security
officers, correct?
A. Yes.
Q.
As you did not perform an
investigation, your opinion was based on the documents you reviewed?
A. Yes, that plus my
education, training, and experience.
Q.
You reviewed relevant
portions of the:
a. depositions of Ann
Jefferson, Tom Davis, and Ray Ellis
b. complaint
c. answer
d. incident report
#69-107-12 dated 4/6/98
e. the public safety
services agreement dated 1/14/96
f. interviews with seven
hotel employees
g. photocopies no. 1-21 and
h. comprehensive RPD Report
416293-17
Correct?
A.
Yes.
Q.
How did you obtain these
“relevant portions” of the record?
A. Counsel sent them to me.
Q.
So, Counsel and not you
made the decisions as to what was relevant?
A. Yes.
Q.
Do you know how many
hundreds of pages of the depositions were not sent to you?
A. No.
Q.
Could anything contained
in these missing deposition pages or other records have had an impact on your
factual assumptions or your ultimate opinion?
A. I don’t know.
Q.
That is because you never
saw them, correct?
A. Yes.
Q. Might your opinion be
different if you had an opportunity to review these missing records?
A. It might be.
Q. Did you request these
missing records?
A. Yes.
Q.
Why were they not provided
to you?
A. I don’t know.
Lesson:
This is a very effective cross-examination in which the factual basis of the
expert’s opinion has been called into question.
Experts who insist on and obtain complete
copies of relevant documents are in a much stronger position to support their
factual assumptions and ultimate opinions.
When records and other documents are excerpted and “relevant” or
“pertinent” portions are selected out by counsel or others, the expert may
be deprived of crucial information, data, or facts. In
addition, counsel has in effect substituted his judgment for that of the expert.
The jury or fact finder is left to draw the conclusion that the lawyer
may be intentionally omitting information that does not support the opinion he
is seeking from the expert.
Example 6.510: Karnack the Magnificent
Q.
As I understand it, you
were sent a 240-page deposition transcript to review by Attorney Baker and you
reviewed about 40 pages of the “relevant”
material, correct?
A. Yes.
Q.
You of course read the
other 200 pages to see if it was relevant?
A. No.
Q.
Could you explain how you
determined that the 200 pages you didn’t read were not relevant?
A. Well, experience–I have
been in this business for 32 years.
Q. Let me see then, did you
(counsel takes transcript and puts it against his forehead) hold the transcript
pages like Karnack the Magnificent and say, “not relevant, not relevant,
relevant”? Is that what your
experience allows you to do?
Lesson:
Experts cannot know whether a portion of a document is relevant unless they read that
portion of the document. Counsel’s
cross-examination here may have been a little over the top, but the point is
valid and is likely to be understood by the jury: How can the expert know if
something is relevant if he hasn’t read it?
If the expert didn’t even read everything that he was sent, why should
a jury trust his opinion?
Jurors and many people in general may have a hard time
understanding or may be suspicious of statistics, numbers, figures, formulas,
and other “math.” It is crucial
that experts not increase this suspicion.
Experts who testify regarding numbers, figures, and formulas need to know their origins
and understand specifically how they were derived.
Counsel can be expected to attack any lack of familiarity or knowledge
with numbers, figures, or formulas head-on during cross-examination.
If the expert does not know the numbers cold, the jurors may ask the
question, “Why should we trust that expert’s numbers?
It doesn’t look like he even understands them.”
Please consider the following example:
Example 6.511: Fuzzy math
Q.
In tab 5 or section 5 of
your testimony, Mr. Neidermyer, you explain to us the, how we get to this 12
percent return on surplus standard. And
just to summarize, I understand that it initially starts with a 10.4 arithmetic
average of P & C Carriers over a 10-year period which is then rounded down
to 10.2 [sic] and multiplied by 1.2?
A. I believe so, that is my
understanding.
Q. When you say it is your
understanding, are you saying you are not totally comfortable with it?
A. From the Nationwide, that
is the way I understand that it was derived.
Q.
Have you ever talked
to—who came up with that number, do you know?
A. I am not sure.
Q.
And your knowledge of how
it was derived is in reading the Nationwide adjudication?
A. Yes. And well, in conversation with, several people in the
Department.
Q. But you never talked to
the person, whoever it was who actually came up with this number?
A. No.
…
Q.
Now, if we, 10.4, well,
the conversion formula is to take the GAAP equity figure, times it by 1.2 to
give us a return on statutory surplus?
A. Correct.
Q. 10.4 can be multiplied by
1.2 can it not?
A. Correct.
Q. And that would give us
12.48? Is that right?
A. OK.
Q.
Have you given any thought
to why 12.48…wasn’t used as the Department’s benchmark given that that
would be the accurate transaction of this 10.4 percent figure that was derived
from this ISO study apparently?
A. Early on when I was
involved with this, it goes back very close to the beginning, I recall the 10.4
was based on actual data from the first report and then the 1988 results
actually slipped a bit. And I
believe it was my thought that that was the reason the 10 percent was selected
and then the 1.2 applied to that.
Q.
But I take it your
testimony is that you are not real clear that that is what happened?
A. No.
Q.
You have this vague
recollection?
A. Right.
Q.
So other than this vague
recollection there is no reason that you know of why the number that the
Department calculated to be the average return earned by the property/casualty
insurance industry from 1979 through 1988, shouldn’t be the 10.4 figure which
apparently it was?
A. No.
Q. It simply was rounded down
to 10.0?
A. Correct.
Q. If you were going to
indicate what would be an adequate rate of return on a going basis for a
company, P&C writer [sic] today, would you recommend in your professional
judgment a 12 percent on statutory surplus?
A. I have not done any
studies so that I would feel comfortable with picking a number.
Q. Do you recall testifying
in the Liberty Mutual case that you would not be sure if you would accept 12
percent on a going basis as being a fair and adequate rate?
A. I recall.
Q.
Has anything changed your
mind from your testimony in that hearing to today’s hearing?
A. No.
Lesson:
In the above example, the court rejected the 12% threshold based in large part
on the ambiguity and uncertainty of the expert’s testimony.
Experts should be prepared to explain in detail
and with precision how they arrive at rates, numbers, figures, and formulas.
Failure to do so will, as in the above example, have disastrous results.
For
additional information on the above example, see Prudential
Property and Casualty Insurance Company v. Department of Insurance, 595 A.2d
649 (Pa. Cmwlth 1991).
Experts who conduct an inspection of a machine, accident
scene, or anything else long after the accident date can expect to be
cross-examined concerning the passage of time and its effect on the item at
issue. This is a legitimate area of
inquiry. At issue, of course, is
whether the conditions were substantially the same at the time of the inspection
as they were at the time of the incident. If
there is a reason why the expert does not believe that conditions have changed
substantially, the expert should be prepared to explain this.
Please consider the following example:
Example 6.512: Golf car inspection made 4
years after accident
Q.
You inspected the golf car
in question how many years after the accident?
A. Approximately four years.
Q.
You found that the set
screw that connects the directional lever to the control shaft was improperly
positioned?
A. Yes.
Q.
Has the set screw of the
golf car in question been modified in any way since the accident?
A. Not to my knowledge.
Q.
Was the key switch
tightened during the intervening four years?
A. Not to my knowledge.
Q.
The golf car was put back
into use after the accident, was it not?
A. Yes.
Q.
What repairs were made to
it before it was put back into use?
A. I don’t know.
Q.
How many different people
drove the car in the intervening four years?
A. I am not sure.
Q.
What maintenance was done
to the golf car over the four years?
A. I don’t know.
There was no service record available.
Q.
So you cannot say with a
reasonable degree of engineering certainty that the set screw was not changed
and the golf car remained in substantially the same condition four years after
the accident when you examined it?
Lesson:
This is an effective cross-examination. It
calls into question the expert’s entire opinion.
If the expert in this example had reason to believe that the set screw
had not been altered, it would have been beneficial to explain this during
direct, or, if given an opportunity, during cross-examination.
This
example was based on the case of Tidemann
v. Nadler Golf Car Sales, Inc., 224 F.3rd 719 (7 Cir. 2000).
Experts should anticipate being questioned on the amount of
time they have spent on the case. Counsel
can attempt to imply or prove that the expert did any of the following.
· He spent too many hours in an attempt to run up a large bill. The expert is therefore dishonest and will defraud or lie for money.· He could not have spent all of the hours he alleges. The expert is therefore dishonest, sloppy, or forgetful. In any event, he is not to be believed.
· He is mistaken about the time spent due to discrepancies between his testimony and his billing records. If the expert doesn’t even know how many hours he spent on the matter or can’t get his billing straight, why should he be believed when giving an opinion?
·