During the Claims and Litigation Management Alliance (CLM) annual conference in April 2016 in Orlando, FL there was a handout on the admissibility of expert witness testimony.
Expert opinions are usually relied on in tort lawsuits. Expert testimony in the form of an opinion is allowed when scientific, technical, or other specialized knowledge assist the jury in understanding the evidence or in deciding a fact in issue. Two well-known cases which govern expert testimony admissibility are Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 597 (1993).
California follows the Frye standard for determining expert witness admissibility, but most states such as Florida rely on the Daubert standard. When assessing the admissibility of expert testimony, the Daubert standard requires a qualified expert to: (1) testify based on sufficient facts or data; (2) give testimony that is the product of reliable principles and methods; and (3) apply principles and methods reliably to the case facts.
All expert opinions must be stated to a reasonable degree of certainty. It is not enough to present an expert opinion to a mere possibility. Reasonable degree of certainty is a threshold standard beyond a mere preponderance, 50.01% and closely reaches the statistical probability of 60%-75%. The expert needs to develop the opinion based upon verified facts in the record.
To scrutinize the expert’s opinion, review all sources quoted by an expert. The authoritative sources and publications need to be relevant to the case at hand. Request the expert’s complete file of materials relied upon, and take the deposition of the expert. The expert deposition allows assessment of the expert’s competence in the field of study, facts of the case, jury appeal, likeability, and investigation of the basis of the expert’s opinion.
On whether to eliminate an expert’s testimony in a motion in limine, hold off when the exclusion of the expert’s opinion will not materially alter the plaintiff’s claim. Save the expert for cross examination. To attack an expert’s credibility, study the expert’s social media, blogs, web site pages, and prior publications, including reports from prior cases. By ruining the credibility of an expert witness, a party’s whole position can crumble.
Read the Article Here