At what stages of litigation should you be thinking about experts?

1. Rule 16 Conference -The party with the burden of proof on an issue should be required to disclose its experts first, and if an expert is retained solely to contradict or rebut evidence offered by an opponent’s expert, then an additional 30 days is allowed for disclosures. DO NOT allow your opponent to persuade the court to set simultaneous disclosure dates.

2. Rule 26 Disclosures -Expert disclosures are a necessary evil in preparing to represent your client and evaluating your case’s value. In federal court, the rules for disclosing experts are contained in Federal Rule of Civil Procedure 26 and are fairly mechanical, but failure to understand and follow disclosure requirements in a timely fashion can have unfortunate consequences, such as exclusion of the expert’s testimony at trial.

a. Deadlines

Rule 26(a)(2))(A) requires a party to disclose “the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.” The court sets the dates for these disclosures through the Rule 16(b) Scheduling Order. If the court does not set the dates, the disclosures are due 90 days before the trial date, or the date the case is set for trial. Fed. R. Civ. P. 26(a)(2)(C).

b. Types of Experts

1. Testifying
Understand that Rule 26 recognizes two different types of experts, those that must produce a written report, and those who do not have to. A testifying expert is an expert who may be used at trial to present evidence under Fed. R. Evid. 702, 703, or 705. Fed. R. Civ. Pro. 26(a)(2)(A). Testifying experts can be either retained or nonretained.

(a) Retained
A retained testifying expert is either retained or specifically employed to provide testimony or whose duties as an employee of a party regularly involve giving expert testimony. Fed. R. Civ. P. 26(a)(2)(B). Parties are entitled to full discovery of each other’s retained testifying experts, which includes: (1) Identity; (2) Written Report (as described in Fed. R. Civ. P. 26(a)(2)(B) and discussed below); (3) Subject of Testimony; (4) Information Considered; (5) Opinions; (6) Materials Used; (7) Resume and Bibliography; (8) List of other Cases in Which the Expert has Testified – last four years; and (9) Compensation.

(b) Nonretained A nonretained testifying expert is an expert who is not specifically retained or employed to provide testimony, but who usually has firsthand factual knowledge about the case. Rule 26(a)(2)(A), as described above, is very broad, requiring disclosure of “any person who may be used at trial” (emphasis added), but this does not necessarily require a report. Examples are a plaintiff’s treating physician, an accident investigator, or an employee/expert who does not normally engage in providing expert testimony. Parties are entitled to the same discovery of nonretained testifying experts as they would receive from fact witnesses, which includes: (1) Identity; (2) Connection with the case – provided in initial disclosures; (3) Facts; (4) Opinions. Notice that a written report is NOT required from a nonretained testifying expert.

2. Consulting
A consulting expert is an expert who has been retained or consulted in anticipation of litigation, or in preparation for trial, but who will not testify. Fed. R. Civ. P. 26(b)(4)(B). The general rule is that no information about a consulting expert is discoverable, unless exceptional circumstances exist. Id. Exceptional circumstances are generally a basic lack of ability to discover equivalent information (destroyed evidence, no other experts in the field available, etc.).

In order to protect your expert’s status as a consulting expert, DO NOT let them view the site or examine the physical evidence, DO NOT let the consulting expert share opinions with the testifying expert, and keep a log of all documents and items reviewed by the consulting expert.

c. The Expert’s Report
Federal Rule of Civil Procedure 26(a)(2)(B) establishes the written disclosure requirements of an expert’s report. At a minimum, the report must:

1. Be in writing;

2. Be signed by the expert;

3. Contain a complete statement of all opinions to be offered and the basis and reasons for the opinions;

4. Contain the information considered by the expert in forming the opinions;

5. Contain the expert’s qualifications

6. Contain a list of all publications authored by the expert in the last 10 years

7. List the compensation plan agreed to by the expert;

8. List any other case in which the expert has testified at trial or by deposition within the last four years.

Unless the trial court orders otherwise, the report must be provided 90 days before trial, or, for experts whose testimony is intended solely to contradict or rebut other experts, within 30 days after the disclosure of the material to be rebutted. The report must be “prepared and signed by the witness,” however the he 1993 Advisory Committee Notes to Rule 26 say that this requirement "does not preclude counsel from providing assistance to experts in preparing the report." However, remember that communications with testimonial experts are NOT generally privileged, and it detracts from the credibility of the report and the expert when it is inevitably discovered that the report was ghostwritten by an attorney.

Rule 26(e) Supplements – Expert reports must be supplemented if: "in some material respect the information [previously] disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26(e). If your expert’s opinion changes, you are under a duty to disclose the change to your adversary. Good faith efforts generally will suffice. Rule 26(e) does not require the entire report to be revised, but this is recommended, as the expert’s opinions will be embodied in a single, self-contained document that will enhance both legibility and credibility. Obviously, it is not advisable to over-supplement, as each new revision detracts from the expert’s credibility, and probably rates a new costly deposition.

Depositions (and other Discovery) – After receiving the report, the next step is to use other discovery options (usually depositions) to obtain further information with which to bolster possible Daubert objections. Many resources are readily available on how to properly conduct an expert’s deposition, but two points need to be stressed: (1) it is almost impossible to over prepare, and (2) the expert deponent is NOT represented by counsel, therefore all communications with the party who retained the expert are discoverable, and there is no attorney-client privilege.

In collecting your information during discovery and preparing your attack, you should concentrate in three areas: (1) lack of qualifications, (2) flawed reasoning or methodology, and (3) lack of relevance or “fit.”

(1) Lack of Qualifications – Go beyond the typical questions concerning education, experience, professional papers, studies, and seminars. The goal should be to demonstrate that in this age of specialization, the expert lacks the qualifications to opine in the narrow area for which the jury requires expert testimony. Don’t let the proffered expert become qualified in one small area, then be used as an “expert for all seasons.”

(2) Flawed reasoning or methodology – Ammunition for this line of attack is best gleaned from the expert’s report. Look for legal jargon in the report, a dead giveaway that there was heavy lawyer involvement in preparing it. What methodology or reasoning has the expert used for each opinion? Do the scientific studies relied on by the expert really support what the expert says? Is the opinion capable of being tested? Who has tested it? What is the rate of error and what are the proper controls for the tests? Has the opinion been “generally accepted” in the relevant expert community? Take your expert to the deposition and watch for SWAGS. SWAGS have recently been addressed specifically by the Mississippi Supreme Court.3 3 See Edmonds v. State, 2007 WL14808 (Miss. 2007)(“we find that a full-scale Daubert hearing is not required when an expert witness proffers an “off-the-cuff” opinion”)

(3) Lack of relevance or “fit” – This goes beyond legal relevance. The proffered opinion must “fit” the issues to be decided and must assist the trier of fact. Animal studies of certain drugs may not be valid as applied to humans. Proof of general causation that substance X causes condition Y is only half the causation question. The other half is did substance X cause condition Y in this particular plaintiff.

Motions to Strike – Daubert motions are correctly presented as Motions to Strike, and should (1) clearly identify the specific portions of the testimony to which the objections pertain, (2) state the grounds for objection in sufficient detail to permit a response, and (3) divulge all evidentiary material on which the movant will rely (e.g., expert affidavits). From the motions, the court may hold a Daubert hearing and receive testimony, or may hold a “paper” hearing.

Summary Judgment – Serving a Daubert motion simultaneously with a Motion for Summary Judgment is a tactic used increasingly to take advantage of the differing standards of review. Appellate review of Summary Judgment issues is de novo, and if the nonmoving party produces admissible evidence that would sustain a jury verdict in its favor on the point in dispute, the motion must be denied. In contrast, in accordance with Joiner, Daubert issues are reviewed only for abuse of discretion. Joiner, 522 U.S. at 136. It is these differing standards that the use of Daubert motions in conjunction with summary judgment exploits. If the parties' are disputing the reliability of the proffered expert evidence, the trial court has leeway to resolve the controversy by excluding the evidence under Daubert, thus making the evidence unavailable to oppose summary judgment. But if the points of contention are primarily a factual dispute between reliable experts, then summary judgment on those points should be unavailable.⁴

Trial -By the time of trial, all reports will have been filed, all depositions will be done, all motions resolved one way or the other, and all supplements and pretrial matters finalized. If you have lost on your pretrial Daubert issue, you should attempt to make a new offer of proof, and renew the Daubert objection. Finally, you should follow the Daubert Court’s guidance as to the continued availability of traditional tools under the adversary system, including vigorous cross-examination, presentation of contrary evidence, and careful instructions to jurors on burdens of proof.⁵

Appeal – Put bluntly, your appeal of a Daubert decision that did not go your way is not likely to succeed. The Fifth Circuit’s affirmance rate is roughly 86 percent as of March 19, 2006.6 If an appeal is necessary, however, it is important to ensure that the appellate court has easy access to the expert’s testimony and all related documents (reports, depositions, pertinent portions of the transcript, etc).

⁴ http://www.daubertontheweb.com/Summary%20Judgment.htm
⁵ http://www.daubertontheweb.com/Chapter_2.htm 6
http://www.daubertontheweb.com/fifth_circuit.htm

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