Category Archives: testimony
1. Review all evidentiary foundations. You should review the appropriate
foundational requirements for the admission of any records, tests, or other analysis which is not
stipulated to by the opposing party. Remember under Rule of Evidence 703, your expert can
consider matters outside the evidentiary record at trial in reaching his opinion.
2. Standard of proof or level of confidence required. This distinction has
somewhat dissipated. However, a number of judges still require the use of the “magic words.”
Typically, at the beginning, it makes sense to ask that your expert give his opinion in the case
based upon a reasonable degree of medical or scientific probability unless instructed otherwise.
Caution your expert to avoid using the phrase “possible” since it is legally meaningless.
3. Reliance on materials outside of the court record. The facts or data in the
particular case upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. Experts may testify to opinions based on
inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the
field. Federal Rule of Evidence 703. Typically, I would ask the expert ‘If in reaching his opinions and conclusions in this case, did he use only materials reasonably relied upon by persons in his field?
4. Role as an educator/not an advocate. KISS—Keep it simple, stupid! Avoid
technical terms. Use models or diagrams whenever possible. Above all, make it interesting! The expert should be enlightening, not boring! In this regard, less is more. Get to the point early. The expert needs to be an educator, not an advocate. That’s your job.
5. Professional demeanor. Make sure your expert has the knowledge and control
to avoiding taking the bait! No matter how the opposing attorney acts, your expert must stay
polite and professional. Avoid sarcasm or insults. Credibility will ultimately be lost.
6. Review of demonstrative evidence. If you are going to use charts, models or
diagrams, make sure they are properly disclosed in advance, and if possible included with your
expert’s report. Likewise, summaries under Rule 1006 need to be produced in advance.
7. In court demonstrations or “experiments”. Make sure you practice them and
they will definitely work. You don’t want to hear, “If it doesn’t fit, you must acquit.”
8. Review prior materials for any mistakes or errors. Look one last time for
problems. Deal with any mistakes or error on direct, and deal with any shortcomings honestly.
You will gain credibility and avoid the sting of these topics on cross-examination.
9. Absent Subpoena Duces Tecum, limit materials brought to court. Bring only
those items which have previously been produced. Be ready to answer questions regarding
compensation paid, and hours of work spent. Remind your expert that he is paid for his time, not
10. Contrast and compare expert’s qualifications with those of any opposing
expert. Show what he brings to the table that the other expert is missing, whether it is in the way
of experience, time spent, or knowledge. Show the jury why your expert is the better guide.
11. Cover adequacy of facts included in any hypothetical questions. If you plan
or may ask a hypothetical question, make sure you review the relevant factors in advance of trial
with your expert so you are both on the same page. Write out your question so you are
consistent in the way you ask it.
12. Likely tactics of opposing counsel. Know your opponent. In the seminal book, “
The Art of War” Sun Tzu advises:
“If you know the enemy and know yourself, you need not fear the
result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
Ask around and learn your opponent as well as yourself and your own case, and you, too, will
have nothing to fear.
Here they are…
1. Hiring an expert too late. Experts can be helpful and sometimes essential in
properly investigating and evaluating a case. They can provide guidance in drafting discovery requests and determining whether information has been overlooked, withheld or lost. They are also invaluable in assisting in deposition preparation and questioning of the opposing expert.
2. Being penny-wise and pound-foolish. Do not save pennies and shortcut what
needs to be done at the cost of your case! Go through the cost and benefits of what needs to been
done early on and decide whether it makes sense to pursue your case through trial. For example,
product liability cases and medical malpractice cases are very expensive to litigate. By getting an expert involved early on, you can assess whether the case merits the time and money required
to be successful. If you defer expert involvement, you may well incur expenses and invest time that was better spent on another case.
3. Obtaining the wrong type of expert. Don’t bring a knife to a gunfight! Make sure you understand the science and technical issues well enough to properly select and screen your expert.
4. Hiring an inexperienced expert. Experience in the courtroom matters. It holds true for attorneys and experts alike. Get an expert who “has been there and done that.” This is not the place to cut costs!
5. Failing to check an expert’s background. You know your opponent will do so,
so why wouldn’t you check your expert’s background? It’s cheaper to check out your expert
than to have to pay for two experts or lose your case because of problems which could have been
6. Buying a Volkswagen when you need a Mercedes. Get the person who fits the
job, not just your budget! As a Plaintiff’s attorney you will lose your case, disappoint a client
and cost yourself money which you can never recover. As a defense attorney, you risk losing a case and a book of business. If the insurer does want to do it right, then they better be ready to pay, or overpay the claim.
7. Forgetting that “Garbage in equals garbage out”. You must provide your
expert with solid evidentiary material or rock solid assumptions if he is opining on ahypotheticalquestion. If your incoming information is not reliable or ascertainable, you are lost from the
8. Failing to educate yourself. You cannot hire the right expert if you don’t
understand the area of expertise involved. One excellent source to check is the Reference
Manual on Scientific Evidence 3rd Edition published by the Federal Judicial Center, which
covers all of the common areas of forensic and scientific analysis that usually arise in civil or
criminal litigation. Here is the link:
9. Underestimating the value of a good communicator. First and foremost, your
expert must be a good communicator and educator. No one will care how smart he is unless they
can understand and connect with him as a person. He has to be interesting and make the jury
want to lean forward and learn more – not take a nap! As Theodore Roosevelt quipped, “No one
cares how much you know, until they know how much you care.”
10. Lacking clarity on the issue in dispute and the theme of your case. What is your case’s theme? How does your expert move your case forward? Can you phrase the
technical issues so they meld with your broader themes in the case? Don’t forget the forest for
(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
(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.”
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:
(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
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
(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.
(a) Classes of expert witnesses in academia, working professionals, and
full time professional experts. These are the three primary areas from which you are likely to obtain experts in anticipation of litigation. Each has its advantages and disadvantages as discussed below.
(b) Referrals from other attorneys. This is my preferred method. It’s like
buying a used car that someone else has already checked out and driven over rough terrain. They will often have past depositions or trial testimony you can read. They can effectively sum up the witness’s strengths and weaknesses so you know what to expect.
(c) Expert witness locating services. Not my favorite, but they can be very helpful in locating persons with obscure areas of expertise or in litigation local experts dare not become involved due to peer pressure such as in professional negligence cases. The fees charged by the experts are substantially higher because the service tacks on
substantial hourly surcharges. However, such services typically vet the experts and can
provide you with sample reports or depositions.
(d) Local universities and colleges. This is a great source for top-notch professors. Local professors are knowledgeable, well read and well versed on the latest
developments in their fields. They are usually skilled at teaching and have experience in
educating and helping others understand difficult and technical topics. Often they have
written in your field of study at issue. The most common drawback is the fact that they
sometimes lack the practical background and work experience. Also, because they have
published, opposing counsel can use your expert’s own material to impeach them and exploit their beliefs and positions against your client’s claim.
(e) Authors of authoritative textbooks. The principles outlined above are
equally applicable here. Such experts are conservative. They value their position and reputation as an expert in their field. They can make excellent consultants and assist you
in locating testimonial experts given their knowledge and connections.
(f) Authors of journal articles. The principles outlined above are equally applicable here. When dealing with more obscure topics they can be very helpful assuming they have written on the topic at issue. However, they may never have testified
before. Are they quick on their feet? Are they good under pressure? Will they stay poised? Do they lack practical experience needed to give them credibility? Screening and preparing such witnesses can be critical if they lack experience testifying in court or
in a deposition.
(g) Leaders in business or industry. Such persons are natural leaders and
may have personality and charisma which may be lacking in some academic type. They
may be well known locally and respected. They have practical experience that may trump
the theoretical musings of those in academia. These aforementioned weaknesses in some
instances are the business leaders’ strengths. Will they come across more as an advocate
than as an impartial expert? Will they fall into the trap of sparring with opposing counsel
and lose their composure? Are they venerable to attacks because they are not as well
versed or updated in the area or field at issue? Again, screening and preparing such witnesses can be critical if they lack experience testifying in court or in a deposition.
(h) Skilled witnesses. These are persons already involved in the case. They
should not be overlooked. They have practical experience in your case. They may also
fall within some of the other categories outlined above which further weighs in their favor. Fate chose them, not you. They thereby avoid the stigma of being considered a “
(g) Expert Witness Firms. Such persons are full-time “expert witnesses”
and are hired guns. That being said, if they have a good reputation for being honest brokers they can be excellent choices. They are battle tested and know how to handle the
pressure of a deposition or testifying at trial. They will be more skilled at dealing with trial tactics and better capable of maintaining their composure even if something goes
awry during their testimony. You want to avoid such experts if they are known as “
whores.” They will have a wealth of prior testimony that can be used against them
which could render them impudent as a credible expert. Screening is critical.
I hope this information helps you locate the best expert witness for your case.
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
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
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
Unless manifest injustice would result, the court must require that the party
(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.
1. When to Hire. It is usually advantageous to hire an expert as soon as it is clear you will require one. Oftentimes, you will be hired by a client on a moment’s notice to investigate and document the scene of an incident. If you regularly practice in a particular area,
you may already have knowledge of experts you have used in the past who can competently assist you. Valuable evidence can be lost forever if you fail to conduct a prompt investigation. In order to ensure critical evidence is not lost or spoiled, expert investigators are essential to augment or oversee investigative work conducted by others, especially in the areas of forensics, product liability, computers, motor vehicle collisions, fires or airplane, environmental and/or
2. Expert’s Role/Witness or Consultant. From the moment you consider hiring an
expert, you need to ask a litany of questions: Is an expert needed for purposes of investigating the case or evaluating the case’s merits? Could your own expert hurt more than help your case? Could the expert better act as a sounding board, provide contrarian analysis and assist you in developing the facts? Do you need help finding a top-notch expert for your case? Is there information that you cannot risk being revealed due to its inflammatory nature, but nonetheless to get expert input in order to prepare for the worst? If so, then you may be best served by obtaining a consulting expert. Most jurisdictions recognize that consulting experts are subject to a qualified work product privilege claim. If the nature of your case raises a choice of law or forum question, be aware of the relevant case law in all applicable jurisdictions.
3. Necessity or luxury. Not every case requires an expert who is retained in
anticipation of litigation. Skilled witnesses such as treating healthcare providers or governmental investigators and experts may already be involved who can assist you in developing and establishing the issues of liability, causation, or the extent of damages. On the other hand, is an expert required by the law, complexity of the facts, or needed to assist and educate the jury? In cases of professional negligence (malpractice), expert testimony is
almost always required. Without it, you are subjected to a summary judgment motion or worse, a motion for a directed verdict. What was the standard of care? Was it breached? This is an issue
that needs to be addressed early-on before you spend vast sums of time and money litigating a case which lacks merit. Malpractice cases are the most difficult ones to win. Here in Indiana, less than 80% of the malpractice cases tried to a jury result in a plaintiff’s verdict. Early evaluations prevent you from embarking on a bad business venture that will serve neither you nor the client.
These are the type of questions which need to be asked and answered early in the litigation.
Common Knowledge Exception to the Requirement for Expert Testimony in Professional Negligence Cases – Sometimes Its Child’s Play.
Rule of Evidence 702 governing expert testimony does not always apply and bar lay testimony on issues which are just plain common sense. In certain instances the answer to whether there was professional negligence is intuitively obvious and needs no explanation by an expert or anyone else. (i.e. missed statute of limitation date, leaving behind a sponge or tools in a patient’s body following surgery).
In Indiana, medical malpractice cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some foreign object from the patient’s body. See for example:
Funk v. Bonham (1932), 204 Ind. 170, 183 N.E. 312 (sponge left in abdomen);
Ciesiolka v. Selby (1970), 147 Ind. App. 396, 261 N.E.2d 95 (teflon mesh left in abdomen);
Klinger v. Caylor (1971),148 Ind. App. 508, 267 N.E.2d 848 (“surgical padding” left in intestinal tract); and Burke v. Capello (1988), Ind.,520 N.E.2d 439 (cement left in hip).
Likewise, in a similar fashion, res ipsa loquitur applied when a patient’s oxygen mask caught fire during surgery. Cleary v.Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008).
This same sort of common sense approach is endorsed in other jurisdictions as well. See the following examples utilizing the common knowledge exception:
Bernsden v. Johnson, 174 Kan. 230, 236-37, 255 P.2d 1033 (1953) (applying exception when post-surgery choking was caused by metal disc lodged in patient’s throat);
Biggs v. Cumberland County Hospital System, Inc., 69 N.C.App. 547, 317 S.E.2d 421 (1984) (where patient is known to be in weakened condition and is left alone in shower, where she falls, expert testimony on standards for nurse’s aides was not required);
Burks v. Christ Hosp., 19 Ohio St.2d 128, 131, 249 N.E.2d 829 (1969) (sedated, obese patient fell from hospital bed without side rails);
Cockerton v. Mercy Hospital Medical Center, 490 N.W.2d 856 (Iowa App.1992)(where patient fell while in x-ray room expert testimony was not required on hospital’s negligence);
Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711, 718, 683 N.E.2d 1175 (8th Dist.1996) (patient fell after student nurse left her unattended at her walker while opening a door);
German v. Nichopoulos, 577 S.W.2d 197, 202-03 (Tenn. Ct. App. 1978) overruled on other grounds by Seavers, 9 S.W.3d at 96; Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge);
Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164, 367 S.E.2d 453 (Ct. App. 1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient’s mouth);
Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001)(case in which the defendant dentist allegedly pulled the wrong tooth);
Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir.2003) (personnel failed to call treating physician to determine how often insulin was to be administered);
Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 349 A.2d 890 (1975)(expert testimony not required where nurse failed to respond to sedated patient’s call and patient got out of bed and fell);
Palanque v. Lambert-Woolley, 168 N.J. 398, 400, 774 A.2d 501 (2001)(misread the specimen identification numbers as plaintiff’s test result numbers and mistakenly determined that plaintiff had an ectopic pregnancy)
Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341 (Mo.App.1983) (expert testimony not required where bed rails not raised and brain damaged patient fell out);
Rule v. Cheeseman, Executrix, 181 Kan. 957, 963, 317 P.2d 472 (1957) (all four cases applying exception when sponge was left in patient after surgery);
Schraffenberger v. Persinger, Malik & Haaf, M.D.’s, Inc., 114 Ohio App.3d 263, 267,683 N.E.2d 60 (1st Dist.1996) (patient alleged that doctor negligently and erroneously informed him that he was sterile following a vasectomy);
Schwartz v. Abay, 26 Kan.App.2d 707, 995 P.2d 878 (1999) (applying exception where surgeon removed 60% of the wrong vertebral disc);
Thomas v. Dootson, 377 S.C. 293, 659 S.E.2d 253 (Ct. App. 2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen);
Veesart v. Community Hospital Asso., 211 Kan. 896, 508 P.2d 506 (1973) (expert evidence not required where elderly patient fell while going to bathroom);
Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989)(where bed rail left down contrary to doctor’s order and patient fell, no expert testimony required on standard of care);
Washington Hospital Center v. Martin, 454 A.2d 306 (D.C.App. 1982)(mere fact that patient falls in hospital will not normally require expert testimony on hospital’s negligence).
It is important to know your state’s law on this point and plan accordingly. Hopefully, the cases cited above are of use.
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?
There are three things to keep in mind when preparing a witness… Credibiliy, credibility, credibility. Let’s face it; the most persuasive witness is the witness who is most credible. Such a witness speaks clearly, calmly and plainly, does not exaggerate, does not dodge the question, and is able to look the jury right in the eye as they testified. They do not argue, make flippant remarks or engage in sarcasm. It really makes no difference how smooth your witness is, how nice he looks or whether he is glib, if he is not believable. A con man may have these traits, but that doesn’t mean a juror or jury would trust them. A party or witness needs to resist the temptation to make their testimony better than it really is. As mentioned before, “you don’t want to take a good case, try to make it a great case, and turn it into a bad case.” Here are a few general tips in checklist form for your witnesses:
1. Review any relevant documents, especially statements or depositions.
2. Review any exhibits with the witness and make sure they can authenticate them properly.
3.G o back to the scene of the incident at issue and take in all the details. The witness should try to visualize what occurred.
4. Dress appropriately in business attire or a suit if proper. Do not dress in a flashy manner.
5. The witness should be advised of any exclusion/separation orders or motions in limine which have been granted. Regardless the witness should stay outside of the courtroom until called to testify and should refrain from speaking with other witnesses or strangers who might be a potential juror or witness. Tell the witness they are not allowed to talk with anyone about what has happened in the courtroom.
6. If asked if you spoke to anyone, be honest and say yes. Advise the witness that there is nothing wrong with speaking with you before testifying and if he is asked about it there is nothing to fear. This is part of the preparation process so that the jury’s time is not wasted and evidence can come in an orderly fashion. Emphasize the need to be truthful and accurate and tell the witness if they are asked that this is the primary purpose in meeting with them in advance.
7. Always be a lady or gentlemen no matter how rude the other attorney might be.
8. Conduct yourself in a dignified manner. No chewing gum or tobacco in the courtroom. Be mindful that once on the grounds you never know who might be watching. This includes attorneys, jurors or the judge.
9. Take the stand and clearly accept your oath in a calm fashion.
10. Speak loudly and clearly so that all the jurors can hear your answers and look at them when you answer.
11. Be yourself and speak in terms you are comfortable with, but avoid slang or curse words.
12. Stay factual and avoid exaggerating, guessing or giving opinions where facts will do the job. Stay away from terms such as “I believe” or “I think” as they indicate that you are guessing. These terms create “milk toast” answers of little evidentiary value and are dangerous. If you don’t know the answer or cannot recall then simply say so. Again, don’t guess or speculate.
13. Do not memorize your testimony. Pat answers lack the ring of authenticity and candor.
14. Listen carefully to the question and do not answer a question that you do not understand or which has more than one correct answer.
15. Do not quarrel or argue with the other attorney no matter what.
16. Give a direct answer to a direct question. If it can be answered yes or no, then answer it in that fashion. Do not try and explain the answer if an explanation is not asked for by the other attorney unless an explanation is truly required. Before doing so ask the attorney politely, “May I explain my answer?” If he or the judge says no move on and wait for the next question to be asked.
17. Be careful of absolute terms and questions to “box” you in as a witness. This includes question that use language such as “So that is all that happened?”, “You are sure?”, “So you never did…?”, “You always…?”, etc. It is better to respond ”That is all I can recall,” if you forgot something. The answer, “I don’t know” means it has never been in your brain, while “I don’t recall” means the information sought has been in your consciousness, but you are unable to retrieve the information at the moment.
18. Cover with the witness the foundation for “refreshing recollection” under IRE 612 and “past recollection recorded” under IRE 803(5)
19. Don’t try to sneak in answer. If there is an objection stop immediately until the Court has ruled and you have been either instructed to move ahead or a different question is asked.
20. Don’t play attorney and object to questions yourself. That is the role of the attorneys, not the witness. That being said, you always have the right to understand the question being asked.
21. If you have received a subpoena and witness fee, know that this is perfectly appropriate. If asked, “Are you being paid for your testimony?” answer, “No, I received a witness fee for my time. My honesty is not for sale.”
22. If you are on the stand for an extended period and are tired or need to use the restroom, ask for a break. However, do not speak with anyone during the break. This is inappropriate and could lead to claims or arguments that you were being coached.
23. Most importantly: always testify truthfully and accurately.