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Ask the Expert: A Rules-Based Approach to Deposing Expert Witnesses I had the privilege of learning how to depose experts from my father, who specialized in the expert-intensive practice of representing car and truck manufacturers in product liability litigation. I have since deposed and cross-examined many expert witnesses, and I genuinely enjoy doing so. But I also recognize that sitting across the table from a subject matter expert can be a daunting task for an attorney. The purpose of this short article is to take some of the mystery out of the process and to provide a framework based on the two most important rules governing expert discovery, one procedural and one evidentiary. The questions suggested here are by no means intended to be a complete outline for an expert deposition. Rather, they are meant to provide a framework that covers the basics. I. Federal Rule of Civil Procedure 26 Federal Rule of Civil Procedure 26 governs discovery. If the witness has been retained to provide expert testimony or is an employee whose duties regularly involve giving expert testimony, then the witness must produce a written report that contains the following:
If the expert is not required to provide a written report, the party proffering the witness must still provide a disclosure of expert testimony, which 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.[ii] II. Deposition Questions Based on Rule 26 These disclosure requirements suggest a good set of opening questions to make sure you have been fairly apprised of the expert’s opinions and the basis for those opinions. Such questions may include:
a) Does your report contain all of the bases for your opinions? b) Does it contain all of the reasons for your opinions?
a) Does your report contain all facts and data you considered? b) Have you asked for any additional facts or data that you have not yet received? If so, what did you ask for and why?
a) Did you [insert what the expert did not do/review]?[vii] b) May that have revealed additional relevant facts or data? c) May that additional information have affected your opinions? d) Have you done/reviewed that in other cases? Why? e) Why didn’t you do/review that in this case?
a) Do you hold any professional license(s)? Explain. Have any of your professional license ever been revoked or suspended? Explain. b) Have you ever been sued for malpractice? What was the outcome? Explain.
a) Does your report contain that list? Is it complete? b) Which of those publications were peer reviewed? c) Which of those publications are relevant to your opinions in this case? Explain. d) If there are statements in publications (whether authored by the expert or not) that undermine the expert’s opinions, consider identifying them and asking the expert to admit that the publication is a reliable authority.[ix]
a) Does your report contain that list? Is it complete? b) Has your expert testimony ever been limited or excluded by a court? Explain. c) In which of those other cases did you render opinions that are similar to (on the same topic as) your opinions in this case? Explain.
a) Does your report contain that? b) Who is paying you in this case? c) Have much have you been paid so far? For how many hours? d) Are you owed any additional money for work that either has not yet been billed or has not yet been paid? How much? For how many hours? e) Approximately what percentage of your total annual income comes from providing services as an expert witness? f) Of that, what percentage comes from providing expert services for plaintiffs? For defendants? These preliminary questions are designed to avoid surprises down the road, whether later in the deposition, in response to a motion to limit or exclude the expert’s testimony, or at trial. They also provide a framework for dealing with any such surprises. If, in response to these questions, an expert witness announces a new opinion or a new basis for a previously disclosed opinion, the questioner can deal with that up front, perhaps by refusing to ask the witness about it unless/until it is properly and timely disclosed in a supplemental report or, after preserving your objection based on non-disclosure, by asking the witness about it but reserving the right to continue the deposition on that topic later after the court’s ruling on your objection and after consulting with your own expert(s). III. Federal Rule of Evidence 702 Federal Rule of Evidence 702 governs the admissibility of expert opinion testimony. As fairly recently amended, it provides that a “witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
IV. Deposition Questions Based on Rule 702 These evidentiary requirements similarly suggest deposition questions. For each opinion expressed by the expert, such questions may include:
a) Can that theory or technique be tested? Has it been tested? b) Has that theory or technique been published or otherwise peer reviewed? c) What is the known or potential error rate of that technique? d) Has that theory or technique been generally accepted in the relevant scientific community?
These foundational questions are designed to explore the strength and admissibility of the expert’s opinions, which are only as strong as the facts, principles and methods they are based on. They are also designed to track the elements of Rule 702 so as to make it easier to later challenge the admissibility of seemingly speculative opinions.[xvi] V. Conclusion Since the disclosure and admissibility of expert opinion testimony is governed by rules, it makes sense to utilize those rules when deposing experts. Hopefully this article provides a framework both for doing that and for preparing your own expert to testify. Author Biography: Robert M. Hanlon, Jr. of Goldberg Segalla, LLP co-chairs the firm’s transportation practice group. He is a Fellow of the American College of Trial Lawyers, an honor reserved for no more than 1 percent of the total lawyer population of any state or province. He concentrates his practice on the defense of product liability, transportation, and catastrophic personal injury litigation. [i] Fed. R. Civ. P. 26(a)(2)(B). Draft reports are governed by Rule 26(b)(4)(B). Supplemental reports are governed by Rules 26(a)(2)(E) and 26(e)(2). [ii] Fed. R. Civ. P. 26(a)(2)(C). [iii] Before the deposition, consider serving a demand for production of any other materials, including notes and calculations, prepared by or on behalf of the expert. [iv] In a civil case, “[a]n opinion is not objectionable just because it embraces an ultimate issue.” Fed. R. Evid. 704. [v] Before the deposition, consider serving a demand for production of any materials reviewed by the expert that have not yet been produced in discovery. [vi] At trial, as opposed to in discovery, “an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data.” Opposing counsel may, of course, elicit those facts or data on cross-examination. Fed. R. Evid. 705. [vii] E.g., Did you inspect the accident scene/vehicle? E.g., Did you review the [insert description] documents/photographs/videos? E.g., Did you review the plaintiff’s medical records from before the accident? E.g., Did you review the radiology images, or only the radiology reports? E.g., Did you examine the plaintiff? [viii] Before the deposition, consider serving a demand for production of all publications (“learned treatises”), whether authored by the expert or not, that the expert relies on in support of his opinions. [ix] See Fed. R. Evid. 803(18), Exceptions to the Rule Against Hearsay, Statements in Learned Treatises, Periodicals, or Pamphlets. [x] Before the deposition, consider serving a demand for production of the expert’s invoices. [xi] Experts often express multiple opinions, some of which may fall outside their field(s) of expertise. [xii] Keep in mind that an expert may base an opinion on facts or data that are not admissible in evidence if experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject. Fed. R. Evid. 703. If the expert being deposed relies on inadmissible facts or data, inquire both as to whether they are the kinds of facts or data that are reasonably relied upon by experts in the field and as to the basis of a claim that they are. [xiii] As noted above, if there are important facts or data that the expert did not consider, confirm that. [xiv] See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-595 (1993) (identifying factors a court is to consider when making “a preliminary assessment of whether the reasoning or methodology [aka theory or technique] underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue,” and emphasizing that “[t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 138 (1999) (holding that the Daubert gatekeeping obligation applies not only to "scientific" testimony but also to "technical" or "other specialized" knowledge that is the subject of expert testimony). [xv] Id. at 591 (explaining that the consideration of “fit” and Rule 702’s requirement that the expert’s testimony help the trier of fact “goes primarily to relevance” because “[e]pert testimony which does not relate to any issue in the case in not relevant and, ergo, non-helpful”). [xvi] If the expert’s report (or the proffering party’s disclosure) clearly does not disclose a sufficient basis for his opinions, consider foregoing a deposition and moving to exclude the expert’s opinion testimony on the grounds that his report does disclose the required facts and data, the required principles and methods, and the required application of those principles and methods to the facts of the case. As an alternative to exclusion, ask for a preliminary hearing to determine whether the testimony is admissible. Fed. R. Evid. 104. |