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.
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.
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.
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.
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.
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.
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.
During their hour discussion, Ben and John will consider many of
the burning “what if” questions that can arise in the context of appellate
arbitration and appealing an arbitrator’s decision to a court. Some of
the highlights include “what if the institutional provider appoints an
arbitrator that lacks necessary industry experience in the subject of the
claims?” and “what if a court stays your litigation pending arbitration but
applies the blue pencil approach to rewrite your arbitration agreement?”
John and Ben also will touch upon the “hidden appeal,” the availability of
discovery in a vacatur action, and whether manifest disregard is still viable
or past its prime. 
