Category Archives: exclusion of witnesses

Admissibility and the Burden of Proof are as Different as Apples and Oranges…

In a recent case, the Indiana Court of Appeals held that a nurse practitioner can provide expert medical testimony in areas previously reserved to only medical doctors.  In the decision from the Indiana Court of Appeals it allowed a Nurse Practitioner to testify as an expert witnesses in a soft-tissue case. See the link below:

http://publicaccess.courts.in.gov/Appellate/Document?id=186f4912-5b99-4061-8760-648e61c69cb5

In the decision,the Indiana Court of Appeals held that a nurse practitioner may testify that an injury was consistent with being injured in a particular way, but could go no further unless they witnesses the injury occur.

What is admissible and the admissibility standard applied are different than the quantum of evidence required to meet the necessary burden of proof and avoid a directed verdict. For example under our evidentiary rules relevance is determined by:

Rule 401. Test for Relevant Evidence

Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

Admissibility for evidentiary purposes requires you to meet a very low threshold as seen above under IRE 401.  As a result, I would stick with a “reasonable degree of medical probability” in formulating medical/legal questions needed to establish an essential element of your claim. A particular medical finding could be consistent with multiple diagnoses. A mere possibility makes a finding consistent, but not necessarily probable.  So exercise discretion.  

Expert Witness Reports – Avoiding Litigation Sand Traps – What They Should and Should Not Include

You have hired an expert and are in need of a report or findings for you expert disclosures. What do you do?  Here is a short checklist of things to consider:

 
1. Compliance with Federal Rule of Civil Procedure 26. This probably is a good
place to start. The Rule provides in pertinent part as follows for witnesses hired in anticipation
of litigation:

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule

26(a)(1), a party must disclose to the other parties the identity of

any witness it may use at trial to present evidence under Federal

Rule of Evidence 702, 703, or 705.

Regarding reports, the Rule goes on to state:

(B) Witnesses Who Must Provide a Written Report.

Unless otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report—prepared and signed by
the witness—if the witness is one retained or specially employed to
provide expert testimony in the case or one whose duties as the party’s employee regularly involves giving expert testimony.  

The report must contain:

(i) A complete statement of all opinions the witness will
express and the basis and reasons for them;  

ii) The facts or data considered by the witness in forming
them;

(iii) Any exhibits that will be used to summarize or support
them;

(iv) The witness’s qualifications, including a list of all
publications authored in the previous 10 years;  

(v) A list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
deposition; and  

(vi) A statement of the compensation to be paid for the study
and testimony in the case.

As to those witnesses who are typically skilled witnesses or fact witnesses with specialized or
technical knowledge, it states:

(C) Witnesses Who Do Not Provide a Written Report. Unless
otherwise stipulated or ordered by the court, if the witness is not
required to provide a written report, this disclosure must state:  

(i) The subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or
705; and  

(ii) A summary of the facts and opinions to which the witness
is expected to testify.  

The timing of these disclosures is typically outlined in the Case Management Plan as noted in the
Rule:

(D) Time to Disclose Expert Testimony. A party must make these
disclosures at the times and in the sequence that the court orders.  Absent a stipulation or a court order, the disclosures must be made: 

(i) At least 90 days before the date set for trial or for the case
to be ready for trial; or  

(ii) If the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C), within 30 days after the other  party’s disclosure.  

(E) Supplementing the Disclosure. The parties must supplement
these disclosures when required under Rule 26(e).  

Do not forget the obligation to seasonably supplement your expert responses!
This obligation is continuing and requires no additional request by the opposing party.

 2. Narrative of facts versus summary of materials reviewed.
Narrative formats are time consuming and subject your expert to attack if he misstates or
misinterprets a record. It also poses problems when there are conflicts in the evidentiary record
that have to be resolved by the jury. Providing a factual summary does require your expert to
review and analyze the record and shows that he has considered all relevant evidence. This
process also better prepares the expert to testify and draft reports may expose gaps in your
expert’s knowledge before final conclusions are reached. However, ultimately the documents are
the best evidence, and listing the items is both cheaper and avoids the pitfalls associated with
summarizing voluminous records.

3. Oral reports versus written reports. Early reports should probably be made
verbally. A summary of findings can be made by counsel in his notes which is protected under
the work product privilege. Once the record matures and the facts are clear, reports should be
considered depending on the requirements of your jurisdiction.

4. The problem with draft reports. Such reports only pose a problem if
discoverable. In federal court only the final draft is discoverable. Check your state law on this
topic to see if it differs. 

5. Communications with expert and the work product privilege.
Such communications only pose a problem if discoverable. In federal court only correspondence
containing assumptions of fact or which outline the factual basis for the expert’s opinion are
discoverable. Check your state law on this topic to see if it differs. 

Working with your expert on providing a report that is accurate, complient, clear and concise is critical.  This checklist should help.

Screen Your Expert and Treat Your Case Right by Avoiding Any Big Tricks…

An area which is often overlooked is screening your expert. This is important. Treat it
like you would a major purchase, because it is. 

 
(a) Review and verify Curriculum Vitae. You can devastate an expert if he
lies on his CV. I have done this before with experts who had a long history of testifying.
Surprisingly, even though they had been around for years as experts no one had ever
checked out their background to see if they were legitimate. In one instance I found that
the expert not only wasn’t a professional engineer, but he had never even completed his
degree in engineering! At that time, I used a private investigator to dig up this  information. Today you check such things yourself online.  

(b) Internet search of expert. Do Google, Bing, Google Scholar, Yahoo
searches of your expert using the following format: “ EXPERT NAME” AND “keywords”.  I use key words and phrases such as “ testimony”, “ppt”, “lawsuit”, “pdf”, “
lawsuit”, “deposition”, “You Tube”, “video”, “MIL”, “motion in limine”, “motion to  exclude”, “daubert”, “frye”, “conference presentation”, “author”, “dissertation”, “thesis”,
“capstone”, “expert witness” etc. You can also do a full legal name search using the case
law filter to see if you can find any lawsuits.  

 
(c) Expert databanks. Organizations, attorney associations AAJ, State Trial
Lawyers Association, professional list serves, TrialSmith, Westlaw, Lexus-Nexus, often
provide either searchable databases or bulletin boards where information can be  electronically posted for inquiry and response. Some can be used at no cost, while others
charge a fee or subscription for searches.  

 
(d) Search of reported cases. I would examine both civil and criminal court
dockets, PACER, Westlaw, Lexus-Nexus, electronic court records. Your expert may have
testified or could have been excluded as a witness. Does he have convictions? Does he
have legal or financial problems?  

 
(e) Obtain and check references. Your check should include calls to attorneys listed by your expert as well as attorneys discovered in published cases.  

(f) Verify licensing. Is your expert really licensed or certified? Check– it
should be free. Has he had any disciplinary actions taken against his professional  licensing? How will you handle this at trial? 

(g) Review website and advertising of expert. What does he say? Are
articles attached or linked to the website? Check out his CV and terms of engagement as
an expert.

(h) Review social media of expert. Does the expert have a business or
personal page on YouTube, Facebook, Twitter, LinkedIn, etc. What articles, videos, or
comments has he posted?  

(i) Eyeball test. What kind of appearance does the expert make? Is he goofy
looking? Is he sloppy or slovenly in his appearance? Is he well spoken? Does he make
good eye-contact? Does he fit the part? Does he have charisma or personality? Would
you want him as your teacher? That is what he will be doing for you: teaching the jury
about your case.

(j) Excluded. Has your expert ever been excluded or admitted to testify over the
objection of opposing counsel? He should know this answer and be able to give you
past hearing transcripts, legal briefs and rulings.

You will be surprised by how much exaggeration and unsubstantiated bragging is contained in an expert’s CV.  Find your expert’s problems before you spend your money and risk your case by placing it in the hands of the wrong “expert.”

Setting the Table for Admitting Your Expert’s Testimony.

To serve your expert’s testimony up to a jury you must consider and establish the following:

1. Qualifications. You need to know precisely what you are using your expert for,
and then determine if the expert’s scientific, technical, or other specialized knowledge will help
the trier-of-fact to understand the evidence or to determine a particular fact in issue under Rule
702 of the Federal Rules of Evidence. To do this, you need to look at your expert’s qualifications
in each of the following areas:

 (a) Education

 (b) Background

 (c) Experience

 (d) Publications

 (e) Prior Cases

 (f) Certifications/Professional Memberships

Does each of these areas satisfy the evidentiary requirements under the rules of evidence? Look
for prior cases in your jurisdiction if you think there is a question. For example, a psychologist
or chiropractor may not be able to establish medical causation as this is outside of their area of
expertise. Check your local jurisdiction’s law. You may need a Doctor of Osteopathic Medicine
or a Doctor of Psychiatry instead.  

2. Reliability & Reliance. Others will be discussing in greater depth the issues of
admissibility of experts; however, this is something that needs to be addressed before you
commit your money to any expert. Expert scientific testimony is required to establish and
explain the complex causal relationship between an event and the resulting injury or damage. It is also required for matters requiring special expertise in areas such as medicine, engineering,  accounting, psychology, economics, statistics, forensic sciences (DNA analysis, handwriting analysis, fingerprinting, tool mark examinations, ballistics, entomology, pathology, etc.).

In evaluating the admissibility of such evidence, the trial court must make some
preliminary determinations when called up by the parties to do so, which are controlled by the rules of evidence. This is the minimum threshold which must be met before the trial court will
allow the jury to consider the evidence. I recommend that you know the law of your jurisdiction and preferences of your trial court:  

(a) Frey Test v. Daubert Analysis. In federal court, the Daubert test is
utilized in evaluating the admissibility of evidence. See Daubert v. Merrell Dow
Pharmaceuticals
, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Daubert
court specified a non-exhaustive list of factors that may be relevant in assessing the
reliability of scientific evidence, including:  

 
1. Whether the theory or technique can be and has been tested?  

 2. Whether the theory has been subjected to peer review and publication?

 3. Whether there is a known or potential error rate? and

 4. Whether the theory has been generally accepted within the relevant field of
study?

Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786; Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003).  Federal case law interpreting the Federal Rules of Evidence is not binding upon thedetermination of state evidentiary law. Regarding Daubert, the concerns driving  coincide with the requirement of Indiana Rule of Evidence 702(b) that the trial court be satisfied of the reliability of the scientific principles involved. However, while Daubert may be  instructive and helpful, it is not controlling. State Auto. Ins. Co. v. DMY Realty Co., LLP, 977 N.E.2d 411 (Ind. Ct. App. 2012) (Daubert factors may be helpful in determining whether  scientific principles are reliable, but Indiana has not mandated its application).  

 In order for a witness to qualify as an expert:

 1. The subject matter [must be] distinctly related to some scientific field, business
or profession beyond the knowledge of the average lay person; and

 2. The witness [must be] shown to have sufficient skill, knowledge or experience
in that area so that the opinion will aid the trier-of-fact.

Bacher v. State, 686 N.E.2d 791, 800 (Ind. 1997). The proponent of expert testimony bears the
burden of establishing the foundation and reliability of the scientific principles and tests upon
which the expert’s testimony is based. McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997). 

Once the admissibility of the expert’s opinion is established under Rule 702, “then the accuracy, consistency, and credibility of the expert’s opinions may properly be left to vigorous cross-
examination, presentation of contrary evidence, argument of counsel, and resolution by the trier-of-
fact.” Bennett v. Richmond, 960 N.E.2d 782, 786–87 (Ind. 2012) (quotation omitted).

In determining whether expert testimony is reliable, the trial court acts as a “gatekeeper” to ensure that the expert’s testimony rests on a sufficiently reliable foundation and is relevant to the
issue at hand so that it will assist the trier-of-fact. Wallace v. Meadow Acres Manufactured Hous., Inc., 730 N.E.2d 809, 812 (Ind. Ct. App. 2000), trans. denied. “When faced with a proffer of expert
scientific testimony, the court must make a preliminary assessment of whether the reasoning or  methodology underlying the testimony is scientifically valid and whether that reasoning or  methodology properly can be applied to the facts in issue.” Hannan v. Pest Control Servs., 734  N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied.  

Here in Indiana for example, there is no specific test or set of factors which must be considered in order to satisfy Evidence Rule 702(b), but some relevant considerations include whether the theory or technique can be empirically tested, whether it has been subjected to peer review and publication, and whether it has gained widespread acceptance. Id. at 679–80.  

Ultimately, deciding whether expert testimony is admissible is a matter within the discretion of the trial court. Wallace, 730 N.E.2d at 812. A trial court’s decision to exclude evidence will be
reversed only if that decision is clearly against the logic and effect of the facts and circumstances before the Court, or the reasonable, probable and actual deductions to be drawn from the evidence. Id. There is a presumption that the trial court’s decision is correct, and the burden is on the party challenging the decision to persuade the appellate court that the trial court abused its
discretion. Bennett, 960 N.E.2d at 786.  Stated another way, a trial court’s determination regarding the admissibility of expert  testimony under Rule 702 is discretionary and will be reversed only for abuse of that discretion.
See Bennett , 960 N.E. at 786-787 (held psychologist was qualified to opine that rear-end automobile accident caused motorist to suffer traumatic brain injury); TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind. 2010). The Indiana Supreme Court has instructed trial
courts to consider the general principles and general methodology underlying the reliability of an expert’s testimony, leaving the accuracy, consistency, and credibility of the testimony to be  determined by the trier-of-fact after testimony has been subjected to the adversarial process at trial. Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2000). By requiring trial  courts to be satisfied that expert opinions will assist the fact-finder and that the underlying  scientific principles are reliable, Rule 702 guides the admission of expert scientific testimony. Id.
In other words, the general principles and general methodologies underlying the expert’s  testimony are to be examined by the trial court, but not every aspect of the expert’s testimony as might occur in federal court under Daubert.  

In evaluating the admissibility of evidence under Rule 702, a distinction is sometimes made between expertise that is described as “scientific” as opposed to “technical” in nature. For example, other jurisdictions have analyzed firearms tool mark evidence as something other than
“scientific.” See United States v. Willock, 696 F.Supp.2d 536, 571 (D.Md.2010) (“While … it  may be debatable whether [firearms tool mark identification evidence] is ‘science,’ it clearly is
technical or specialized, and therefore within the scope of [Federal Evidence] Rule 702.”).United States v. Glynn, 578 F.Supp.2d 567, 571 (S.D.N.Y.2008) (recognizing Kumho Tire’s applicability to firearm identification evidence); United States v. Monteiro, 407 F.Supp.2d 351, 372 (D.Mass.2006) (“Based on the factors outlined in Daubert and Kumho Tire, the Court  concludes that the methodology of firearms identification is sufficiently reliable.”); United States v. Green, 405 F.Supp.2d 104, 118 (D.Mass.2005) (observing that firearms identification is “not traditional science” and that Kumho Tire extends the Daubert standard to the case). Firearm identification evidence straddles the line between testimony based on science and experience.  Monteiro, 407 F.Supp.2d at 365.  

Firearms tool mark comparison is similar to other observational comparisons of physical characteristics which have been found to be “on the margins of testimony governed by Rule of Evidence 702(b) as expert scientific testimony.” West v. State, 755 N.E.2d 173, 181 (Ind. 2001)(assessing shoeprint comparison and identification). See also Carter, 766 N.E.2d at 381 (describing bite mark identification as “ ‘simply a matter of comparison of items of physical evidence to determine if they are reciprocal’ ”) (quoting Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513, 516 (1977)); McGrew, supra, 682 N.E.2d at 1292 (citing with approval the trial court’s evaluation of hair comparison analysis as “not the traditional scientific evaluation” but
rather “simply a person’s observations under a microscope”).  

In order to successfully get expert testimony into evidence, the following foundational
prerequisites must be satisfied:  

1. The opinion offered must be one that in fact requires expertise to render it,

2. The witness must be qualified as an expert by knowledge, skill, experience,
training, or education to render such an opinion,  

3. The expert testimony must help the trier of fact to understand the evidence or
determine a fact in issue, and  

4. The expert testimony must rest upon reliable scientific principles.

In terms of the expert’s qualifications, you need to cover:

1. His education and training that qualifies him to act as an expert,

2. Certifications and testing that he has undergone in his chosen field of expertise,


3. Work experience relevant to his analysis and opinions, and

4. Competence to perform any tests or analysis used.

In establishing the reliability of the underlying scientific principles, you should look firstfor other court decisions which have accepted the methodology as reliable. If there are none, then you will probably need to turn to your own expert and present the court with established texts, journal articles, or other accepted learned treatises in the area in order to persuade the court of its
reliability.

(b) Expert’s experience in similar cases. As mentioned earlier, your expert
may have been put through his paces in earlier cases dealing with the same or similar
topic. Experts often times retain copies of these pleadings to ensure that counsel in later
cases is able to effectively establish the admissibility of their testimony and the reliability
of their analysis. So, check with your expert regarding his past experience.  

Expert Witness Retainer Agreements – Striking the Right Deal.

Here are points to consider:

1. Cannot be a contingent fee arrangement. This is unethical and would be
disastrous regardless… enough said.

2. Cost of initial consultation. This should be free or nominal, but make sure this
is clear.

3. Definition of scope of work. This should be set out in the initial engagement
letter in a straightforward, succinct manner.

 
4. Determining whether the case will be billed hourly or in stages. This should
be discussed at the front. Are you doing it by the hour or by the job to be performed? By the job
avoids runaway expenses, but can lead to experts cutting short the work that needs to be done.
5. Setting a budget. This avoids surprises for both sides and eliminates the stress of
the unknown.  

6. Regularity of billing statements. Same as above. It eliminates stresses and
surprise by not including the expert’s bill in your final statement of charges or in the
reconciliation to your client.  

7. Estimate of costs associated with forensic testing and/or scene work. Such
work can involve outside contractors or specialists. You want to budget these out as well.

8. Cost benefit analysis of economy versus completeness. If you cannot afford to
do everything necessary, cover it with your client first! Explain that the costs ultimately are
either paid directly or indirectly. Some clients will raise hell after you settle their case even  though you may have fronted the expenses and resolved the case very favorably. Keep your  client informed of the cost in advance of incurring it.  

9. Cost associated with satisfying federal court or state court disclosure
requirements. What costs in your jurisdiction are to be borne by the party, versus the opponent?
Initial disclosures or answers to interrogatories are usually the financial responsibility of the  party who hired the expert.  

10. Cost associated with responding to discovery requests. Additional requests for
information or discovery may not be had for free. Under Federal Rule of Civil Procedure
26(4)(E):  

Unless manifest injustice would result, the court must require that the party
seeking discovery:  

(i) pay the expert a reasonable fee for time spent in responding to discovery under
Rule 26(b)(4)(A) or (D); and  (ii) for discovery under (D), also pay the other party a fair portion of the fees and  expenses it reasonably incurred in obtaining the expert’s facts and opinions. 

 If you are in state court, check your jurisdiction’s law and make sure your expert is paid
in advance of doing the work.  

I hope you strike the right deal.

How to Exclude Self-Serving Reports by Testimonial Experts

So you’re at trial and your opponent wants to offer into evidence their expert’s written report… What do you do?  Is it admissible? The short answer is no. Expert’s reports are documents prepared in anticipation of litigation and do not have the inherent reliability of documents typically considered and admissible under exceptions to the hearsay rule such as Indiana Rules of Evidence 803 and 804.RULE 803.  Indiana Rule of Evidence 803(6) recognizes this danger.  IRE 803(6) states:

Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(9) or (10) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

(Emphasis Added).  Clearly, a report by a hired gun hardly provides circumstances indicative trustworthiness.  In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004), the Indiana Supreme Court observed:

[The] business records exception to the hearsay rule is “based on the fact that the circumstances of preparation assure the accuracy and reliability of the entries.”  Wells, 261 N.E.2d at 870.  As we have observed more recently, the reliability of business records stems in part from the fact that “the organization depends on them to operate, from the sense that they are subject to review, audit, or internal checks, [and] from the precision engendered by the repetition…”  Stahl v. State, 484 N.E.2d 89, 92 (Ind. 1997); see also Advisory Committee’s Note to Fed. R. of Evid. 803(6) (observing that business records are made reliable by “systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.”

Id. at 642-43.  The Court went on to explain that if a business does not rely on certain records for the performance of its functions then those records do not fall into the hearsay exception for records of regularly conducted business activity.  (See also Palmer v. Hoffman, 318 U.S. 109, 111 (1943), where the Court upheld the exclusion of a railroad engineer’s statement.  “[I]t is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business.  …[T]hese reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating not in railroading.“)

A retained expert’s report is not subject to review, audit, or internal checks for use in the expert’s business nor is it relied upon by the expert in the performance of business functions. In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004). Instead it designed and created for use in litigation. IRE 803(6) requires that the method or circumstances of the preparation not indicate a lack of trustworthiness.

A report is not trustworthy when the Defendant hires an individual to prepare it if the primary motive for preparing the report is for litigation. Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 205 (4th Cir. 2000). “Litigants cannot evade the trustworthy requirement of Rule 803(6) by simply hiring an outside party to investigate an accident and then arguing that the report is a business record because the investigator regularly prepares such reports as part of his business.” Id.   See also, Echo Acceptance Corp. v. Household Retail Services, Inc., 267 F.3d 1068, 1090-91 (10th Cir. 2001); Lust v. Sealy, Inc., 383 F.3d 580, 588 (7th Cir. 2004).

These sentiments are echoed in Judge Robert Miller’s Courtroom Handbook on Indiana Evidence, in reference to Rule 803(6) he notes:

“Documents made in anticipation of litigation, including computer printouts are generally not admissible under Rule 803(6).” Certain Underwriters at Lloyds , London v. Sincovich, 232 F.3d 200, 205 (4th Cir. 2000); Bradley v. Phelps, 147 Ind. App. 349, 260 894, 898 (1970), cf. Baker v. Wagers, 472 N.E.2d 218, 222 (Ind. App. 1984).

So do not let your opponent get away with creating testimonial exhibits which will be taken back to the jury room and provide unfair emphasis on such testimony.  Reports simply aren’t admissible.

The Case Against Experts in the Courtroom

20120227-001826.jpg“If you can’t explain it to a six year old, you don’t understand it yourself.” Albert Einstein

I have always thought it is unclear whether Indiana Rule of Evidence (IRE) 615 applies to depositions. IRE 101(C) states:

Rules Inapplicable. The rules, other than those with respect to privileges, do not apply in the following situations:

(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
(2) Miscellaneous proceedings. Proceedings relating to extradition, sentencing, probation, or parole; issuance of criminal summonses, or of warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.

Interestingly enough, no mention of depositions is made in the proceedings excluded.

Ind.T.R. 30(C) states in part:

Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43(B). *** All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. When there is an objection to a question, the objection and reason therefr shall be noted, and the question shall be answered unless the attorney instructs the deponent not to answer, or the deponent refuses to answer, in which case either party may have the question certified by the Reporter, and the question with the objection thereto when so certified shall be delivered to the party requesting the certification who may then proceed under Rule 37(A).

Ind. T.R. 32(B) states:

Objections to admissibility. Subject to the provisions of Rule 28(B) and subdivision (D)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any depositions or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
* * *

(D) Effect of errors and irregularities in depositions


(3) As to taking of deposition.

(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition. ***

Ind. T.R. 43(B) then reads:

Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

My take away from all of this is that if you want to use the deposition at trial or in connection with a motion for summary judgment, then the rules of evidence would apply. Also, if you do not object to the presence of the expert at the time of the deposition pursuant to IRE 615 the objection is waived because it could have been obviated by the opposing attorney by ordering the expert to leave. If the opposing attorney disagrees then you would have to hope you win the issue at trial or stop the deposition and immediately file a motion to terminate under Ind. T.R. 30(D).  As a result, I would think a court would find IRE 615 applicable to a deposition.

That being said, I think having an expert present to aid you in examining another expert would usually be “a person whose presence is shown by a party to be essential to the presentation of the party’s cause” under IRE 615(C). In Ledden v Kuzma, 858 N.E.2d 186 (Ind.Ct.App.2006), the Kuzmas sought a protective order barring Ledden’s expert from attending Ledden’s deposition of the Kuzmas’ expert witness. The Court of Appeals stated:

Under appropriate circumstances, it may be proper for a protective order to be granted barring an expert -or anyone else – from attending the deposition in question. If a party is able to meet the requirements of Trial Rule 26(c)(5), then a protective order would be warranted. But if, as here, a party is unable to provide any particular and specific demonstration of fact in support of the request for a protective order, then there is no reason – based in logic or rule – to bar the expert from attending the deposition.

Generic allegations of prejudice were made in Ledden v Kuzma.  A factual demonstration supported by evidence of real harm seems to be required given the holding in Ledden v Kuzma.

Trial is a different thing. The argument for the a separation of witnesses is weaker at the discovery stage since you may need the help of your own expert to pin someone down at the pretrial discovery stage whether investigation is needed. While IRE 615(C) does allow a party to designate a person whose presence is essential to their presentation to be present in the courtroom, this creates practical problems and raises concerns about “fairness in administration” and “the end that the truth may be ascertained and proceedings justly determined.” See IRE 102 Purpose and Construction.

When I had this occur in a trial, I successfully argued that the defense expert is not allow to watch the trial and weigh evidence as this is the sole province of the jury. IRE 702(A) states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Allowing expert to attend the trial and opine is a kin to having a shadow jury. Such a process misleads the jury as to an expert’s true role which is to aid the jury in deciding the case, not supplant them. Trial testimony by the expert could run afoul of Rule 704(B) since the expert would in essence be testifying as to whether a witness (including your expert) testified truthfully by opining after watching all the witnesses testify.  Also, Ind.T.R. 26 requires that the basis and opinion of an expert be seasonably disclosed before the trial. An expert’s opinion would change and morph as the trial progressed. The expert, not the jury, would resolve questions of fact, credibility and the weight to be given witness testimony and items of evidence. Such expert testimony could impair or deprive a party of their constitutional right to trial by jury.

So, what do you think?

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