Friday, May 29, 2015

Expert Witnesses – False Representation of Credentials – An Introduction

Everyone uses experts. But, can you tell the difference between an expert and a pseudo-expert?

Jim Cohen of Weidlinger Associates Inc., and Dan Valentine of Simpson Gumpertz & Heger, Inc. have seen a lot of good expert work in their practices, but they have also seen a lot of lawyers, clients, and courts misled by people through inflated credentials, slanted opinion, and advocative testimony.

In a four-part series, Jim and Dan will help you to avoid pitfalls in choosing experts and expose whether an opposing expert knows what they are doing.  As part of these articles, I am assisting Jim and Dan by providing an attorney's perspective -- or at least my perspective -- along the way so that, together, the three of us can help all of you in your work with experts.  

Expert Witnesses – False Representation of Credentials – An Introduction

James Cohen, PE, Associate Principal, Building Pathology and Investigations, Weidlinger Associates Inc.


The Basics: The Federal Rules of Evidence

In nearly every construction case, the parties turn to expert testimony to support their respective positions. As most construction lawyers are aware, certain baseline requirements must be met for a purported expert to be allowed to testify.  The basic framework is set forth in Federal Rules of Evidence 702:
Rule 702. Testimony by Expert WitnessesA witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;(b) the testimony is based on sufficient facts or data;(c) the testimony is the product of reliable principles and methods; and(d) the expert has reliably applied the principles and methods to the facts of the case.

Note that although this rule sets forth criteria for the admittance of testimony, embedded in its first sentence is the requirement that the witness “is qualified as an expert.”  This qualification process is grounded in the Supreme Court’s holdings in Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), and its progeny.

Establishing the Witness as an Expert

As a result, it is a threshold issue to establish whether your witness is an expert before even considering whether his or her proffered testimony satisfies the requirements of FRE 702.  As stated at the beginning of FRE 702, the witness may be qualified as an expert by virtue of the individual’s knowledge, skill, experience, training, or education.  These foundational issues are usually satisfied through a review of the individual’s curriculum vitae.

Having established the witness as an expert, one must then examine the four requirements of FRE 702 to assess whether the expert’s testimony is admissible.  An expert will demonstrate his or her scientific, technical, or other specialized knowledge through their curriculum vitae and by examination and cross-examination. The expert’s opinion and the principles and methods upon which it is based typically will be presented in an affidavit, report or testimony. The trier of fact, as well as the expert witness’s client, are typically insufficiently knowledgeable of the technical issues to fully and reliably determine if the credentials are real, the data are reliable, the principles and methods are acceptable and the application of those principles and methods are appropriate.  But once the witness’s proffered testimony meets the requirements of FRE 702, the trier of fact may then make his or her own assessment of the expert witness’s credibility and determination of the weight to be accorded to the expert witness’s testimony and expert opinion.

When Things Go Wrong: Experts Who Are Not Experts

Nevertheless, there is ample room for an unscrupulous individual to present themselves as an expert falsely and their opinions as coming from an expert. In the best-case scenario, you will uncover the overt misrepresentation of credentials and conclusions before engaging the expert.  Then, you choose a different expert and go into battle. 

A step worse is if you have engaged the expert already, only you are able to uncover their puffery, misrepresented resume, or lack of education or experience in the field in which you need expert testimony before the purported expert testifies in a deposition or provides a report.  At least at this point in time, you still have the opportunity to replace the expert. 

Even worse would be if the expert’s failure to be qualified is determined after a deposition but before Daubert motions are filed. You may still have the opportunity to change out experts at this point, but the damage may already be done. 

Going further, you could end up losing your testifying expert through a Daubert motion.  Then, your choice of experts has not only caused you problems – it has caused your client to lose a significant amount of money only to be left without a testifying expert and subject to losing a claim on summary judgment.

Perhaps the worst-case scenario might be when your opponent may defrock your expert under cross-examination at a hearing or, perhaps as a tactical maneuver, at trial when it is too late for you to retain a new expert or regain the trust of the trier of fact. Not only would you lose the claim on which the expert is testifying, you may also lose other claims as well due to your lost credibility.

Alternatively, suppose no one uncovers the fact that the expert really is not an expert.  In this case, assume that you, your client, and ultimately the trier of fact will innocently accept and rely upon the expert’s inexperience, poor judgment, lack of knowledge, or misapplication of principles and methods towards the issues being addressed. The bad result here is less obvious than before but perhaps even worse: your client loses faith in your abilities and spends lots of money chasing a claim that it otherwise might not have pursued except for your advice based on this expert’s work.  Then, when the case goes awry, it’s your fault and you have lost a client.

Cautionary Tales Involving Defrocked Experts

Is there a problem with an expert’s credentials? It’s better to know the answer to this question sooner rather than later, as illustrated by the following cases:

1)    A firearms expert scheduled to testify on behalf of the State, killed himself after it was discovered that he had falsified his credentials and training. The defendant, whose conviction was based, in part, upon the expert’s testimony filed a motion for a new trial citing as newly discovered evidence the fraudulent credentials of the expert.

Mayes v. Maryland, 2010 U.S. Dist. LEXIS 114741, 6, 2010 WL 4238149 (D. Md. Oct. 26, 2010)

2)    The Supreme Court of Wisconsin vacated an inmate’s conviction concluding in a trial “rife with conflicting and inconclusive medical expert testimony” that it was likely that the jury would have had a reasonable doubt had it discovered that the expert witness lied about his credentials.

State v. Plude, 750 N.W.2d 42, 53 (Wis. 2008)

3)    Appellants challenged a decision that vacated an arbitration award on the basis of fraud.  They argued that the trial court erred because the appellants committed no fraud and because the only fraud was that of the appellees' own expert witness, who presented false credentials.

A. G. Edwards & Sons, Inc. v.Petrucci, 525 So. 2d 918, 918 (Fla. Dist. Ct. App. 2d Dist. 1988)

4)    A landowner involved in litigation engaged an expert witness to testify at the damages stage of the trial. At deposition and at trial the expert testified to his extensive educational and experiential credentials, but the other side impeached him with strong evidence of their falsity and obtained a large verdict in their favor. The landowner then sued the expert for deceit and misrepresentation, arguing that it relied on the expert's assurances, made in his resume and other materials, in retaining him as an expert and then presented him at trial based on his further assurances at deposition. The court agreed, because the landowner presented documentary evidence of its reliance on false information while the expert presented only his self-serving, conclusory affidavit in response.

Sturbridge Isle Realty Corp. v. Brown, 2001 Mass. Super. LEXIS 467, 1, 13 Mass. L. Rep. 607 (Mass. Super. Ct. 2001)

5)    A prisoner's petition for writ of actual innocence was denied properly because the discovery that the ballistic expert’s credentials were falsified did not create a substantial or significant possibility that the result might have been different.  In addition, there was no showing that evidence regarding the "expert's" education could not have been discovered through the exercise of due diligence.  Based on this, the "expert's" false testimony regarding his credentials was not material, but merely impeaching. His claim to have college degrees that he did not actually possess has nothing to do with the accuracy of his conclusion concerning the distance the victim was from the gun when it was shot.

Jackson v. State, 86 A.3d 97, 98 (Md. Ct. Spec. App. 2014)

6)    A pro se defendant sought a new trial on the grounds that his counsel failed to properly investigate the credentials of a government expert witness who falsely testified that he was a "board certified pharmacist." The government opposed the defendant's motion on the grounds that the defendant could neither show that his counsel was ineffective nor that he could show that the government should [2]  have known of the witness' perjury.

In considering the defendant's supplemental pleadings regarding the claims of ineffective assistance of counsel and that the government should have known of the expert witness' perjury, the Court concluded that the defendant failed to put forth a viable ineffective assistance of counsel claim and that the defendant failed to put forth any evidence that the government should have known of the expert's perjury.
United States v. Price, 357 F. Supp. 2d 63, 65 (D.D.C. 2004)

It is unlikely that, in the cases cited above, the attorneys employing the expert witnesses were aware of the false credentials. In addition to credentials, Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), highlight the need for careful scrutiny of data, methodology, and conclusions reached in regard to expert testimony. 

Notwithstanding Daubert and Kumho, the problem of misrepresented credentials continues to surface as late as at trial by which time any review of the expert’s credentials, facts, methodology and relevance should have long been completed. A recent case is a cogent example, in which the court concluded that, “plaintiffs' choice of Dr. Sullivan as its expert witness is surprising as he is singularly unqualified in the necessary areas.” Estate of Jaquez v.City of New York, 2015 U.S. Dist. LEXIS 60734, 23 (S.D.N.Y. May 8, 2015)

What Will Follow

As these cases illustrate, many experts can con good lawyers into believing that the expert knows what he or she is talking about, that the expert has proper credentials, and that the expert follows proper procedures and methods to arrive at conclusions.  

How do you figure out whether your expert is really an expert?  

We will explore how individuals may seek to present fraudulent, inflated, or otherwise misleading credentials, facts, conclusions, and testimony in our next three installments, including 1) initial presentation of credentials; 2) preparation of their report; and 3) during testimony.

Tuesday, May 26, 2015

Publication Opportunities

There are currently a few publication opportunities with both The Construction Lawyer and Under Construction. The Construction Lawyer has opportunities for its mid-winter edition. Under Construction has opportunities for its upcoming editions as well. If you are interested, please email Anthony Osborn ( or Division One Chair Nick Holmes ( and we will put you in touch with the right people. This is a great way to get your name out there, especially for younger lawyers.

Tuesday, May 19, 2015

Update: Be Careful What You Ask For: Missouri Court of Appeals Also Upholds Arbitrator’s Attorneys’ Fee Award Based on AAA Construction Industry Rule 45 When Both Parties Requested an Award of Fees

In our January 15, 2015, post, linked here, we noted the decision in Lasco Inc. v. Inman Construction Corp., et al., 2015 WL 129024 (Tenn. App. 2015), in which the Tennessee Court of Appeals reversed the trial court and upheld an arbitrator’s attorneys’ fee award. The court found that, while the contract at issue did not explicitly provide for the award of attorneys’ fees,  the parties incorporated the AAA’s Construction Industry Rules into their agreement - particularly Rule 45, which authorizes arbitrators to include an attorneys’ fees in an award when both parties request attorneys’ fees. Because both parties had requested attorneys’ fees, the court held that the arbitrator had not exceeded his authority in awarding attorneys’ fees to the prevailing party.

Recently, in City of Chesterfield v. Frederich Constr., Inc., 2015 WL 1814471 (Mo. Ct. App. 2015), the Missouri Court of Appeals held similarly. The contracts at issue provided that all disputes were to be resolved under the AAA’s Construction Industry Rules, but the contracts did not contain explicit attorneys’ fee provisions. There was also no statutory authority for an attorneys’ fee award. The arbitrators noted those points in their final award, but the panel nevertheless awarded fees against the City of Chesterfield under Rule 45 of the AAA’s Construction Industry Rules. Despite the City’s urging that its prior requests for attorneys’ fees were merely “boilerplate” requests, the Court of Appeals found that both parties had indeed requested attorneys’ fees. Therefore, the court held that the panel’s award of fees was proper.

For your reference, a copy of the unpublished decision is linked here

Thursday, May 7, 2015

Respondent Refuses to Pay Arbitration Fee/Deposit - What is the Remedy? Recent Article Advocates for an Immediate Default

The Problem: Respondent purposefully does not pay its share of the arbitration fee/deposit out of a motivation to delay the adjudication process and/or make it more difficult for the claimant to proceed with the contractual arbitration process.  Upon non-payment, and following a cure period, the arbitrator terminates the arbitration.

Options for Claimant:

     (1) Proceed in court litigation. This denies claimant of the bargained-for choice of arbitration.

     (2) Seek an order from court to compel payment. There is no certainty with this approach.  The court may regard the respondent's breach of arbitration agreement to mean that the parties must proceed with litigation in court.  Or, the respondent may still refuse to pay thereby dragging out the process further with increased transactional costs.

     (3) Pay Respondent's portion of the fee. This is not fair.  Especially because most arbitration agreements and arbitration rules call for an equal sharing of the initial fees/deposit.  Also, fronting the full cost of the arbitration changes the dynamics of the case and could create greater concern from the claimant about the ability to recover the amount awarded plus the arbitration costs.   
Despite its unfairness, and where collectability against Respondent is not a major concern, a claimant is most likely to proceed with Option #3.  Option #3 (paying 100%) enables the claimant to have the benefit of its choice of dispute resolution and it gives respondent fewer options to evade a prompt resolution of the matter as could be the case in litigation. 

A recent article, published by the Harvard Negotiation Law Review, suggests a fourth option:
Where a commercial party fails to pay for its share of arbitrator compensation and the proceeding is terminated as a result, that, in and of itself, constitutes a default on the merits of the parties' underlying dispute, thereby entitling the paying party to proceed to court to an inquest on damages.    
In Stiffing the Arbitrators: The Problem of Nonpayment in Commercial Arbitration, Neal Eiseman and Brian Farkas advocate for a default on liability followed by a hearing on the award of damages in Court. 

The authors state the three options cited above are not equitable for the paying party and do not provide a remedy for the material breach of the contract by the non-paying respondent.  Like a defendant's failure to follow the rules of civil procedure and timely respond to a complaint in court proceedings, a respondent's failure to follow the arbitration rules by paying its share of the arbitration fees should similarly result in a default. 

This approach makes sense, but as stated in footnote 27 of the article, courts are not always receptive of that approach. See Whitestone Constr. Co., Inc. v. Varied Constr. Corp., 118 A.D.3d 418 (1st Dep't. 2014) (Eiseman/Farkas advocated for a default in this matter). 

As it relates to the AAA's Construction Arbitration Rules, Rule 56(b) permits an arbitrator, in the event of non-payment, to take certain measures:

Such measures may include limiting a party's ability to assert or pursue their claim. In no event, however, shall a party be precluded from defending a claim or counterclaim . . .
AAA Rule 56(b) states, at least as interpreted by the Whitestone Court, that such a default remedy cannot be ordered by an arbitrator based solely on nonpayment. 

Can a court enter a default against a respondent/defendant following respondent's failure to pay its share of the arbitration fees?

If so, under what rule of civil procedure assuming the only basis is non-payment of the fee? Federal Rule of Civil Procedure 55 does not fit unless the defendant fails to answer the complaint. 

Is it collateral estoppel or issue preclusion? Can't be unless there is a final adjudication on the merits. The termination of the arbitration appears to be an administrative termination rather than a substantive conclusion of the case with binding and preclusive effect.  Even if this theory worked, or assuming a valid theory of material breach without disputed material facts, the end result would be a dispositive motion on liability -- not a default.   
As acknowledged by the law review article, the prevailing judicial mindset is that a Court's primary function (and limitation) is simply to confirm or vacate arbitration awards and to go no further (even if equity warrants it).

Thus, where there is an enforceable arbitration clause, a court is likely to presume that the finding of a default is an issue for the arbitrator -- not the courts. See, e.g., Benihana, Inc. v. Benihana of Tokyo, LLC, Docket No. 14-841 (2d Cir. April 28, 2015), quoting McDonnell Douglas Fin. Corp. v. Pa. Power & Light Co., 858 F.2d 825, 832 (2d Cir. 1988) (Trial Court erred in issuing an injunction preventing a party from introducing a claim in the arbitration proceeding because "[o]nce arbitrators have jurisdiction over a matter, 'any subsequent construction of the contract and of the parties' rights and obligations under it' is for the arbitrators to decide.")

Eiseman/Farkas suggest that attorneys work around the problem of the non-paying respondent in their clients' arbitration clauses.  What would such an arbitration clause look like? If any Division 1 member has seen one, please post it for review/comment.

If working with the AAA Construction Rules, must the clause specifically override Rule 56(b) and expressly empower the arbitrator with the ability to enter a final default against a party for non-payment?  If default is entered by an arbitrator, should the damages hearing immediately go to court or should it stay with the arbitrator?  If the scope of the arbitration was an evidentiary hearing on damages, a claimant may be much more likely to front 100% of the arbitration costs.

Check out this thought-provoking law review article - - and share ideas on how to deal with the problem of party nonpayment in arbitration.