So How Should I Deal With My Opponents Expert Witness Report?

Cross Examining Experts and

Arguing Daubert Issues

Johnine Barnes, Esq.

I. Summary of the Issues

A. The focus on this presentation is to heighten awareness of the need to consider expert
evidentiary issues far ahead of trial.

B. A trial attorney should be intimately familiar with Kumho Tire and Daubert.

C. With these tools, offering and excluding expert evidence can become a powerful tool to
present ones experts in the most favorable light and to attack opposing counsels expert
evidence with vigor.

D. This presentation will address the practical and theoretical legal issues that arise in
examining and cross-examining expert witnesses and ultimately challenging their
testimony in federal civil trial courts.

E. This presentation also addresses practical and theoretical issues for admission of all types
of expert testimony, including: (a) practical management of expert evidence issues in the
pre-trial and trial phases of a case and (b) practical examination tips and motions and
form orders for use by the Texas trial practitioner with regard to expert evidence for
examination and cross-examination purposes.

F. In federal courts, the guiding cases on expert issues are:

1. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and

2. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

II. The Legal Standards for Admissibility of Expert Evidence and Update on Recent Case Law

A. Introduction

1. Expert witnesses play a key role in a jury or bench trial.

2. Because of their label as experts, such witnesses can have an extremely

prejudicial impact on the jury. In fact, juries often rely heavily on an expert as
a perceived neutral figure with the education, knowledge and expertise to clear
up a difficult issue.

3. In response to these concerns, both federal courts, including the U.S. Supreme
Court, and the state courts, have set judicial standards on admissibility of expert
opinion evidence.

B. Federal Law

1. The Daubert/Kumho Test In Federal Court

a. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

i. The Daubert standard requires the trial judge to determine

whether scientific evidence is reliable or trustworthy.

ii. In Daubert, the Supreme Court provides a set of flexible,

nonexclusive guidelines that trial courts may apply a Daubert
hearing as follows: 1)whether the theory or technique has been
scientifically tested; 2)whether the theory or technique has been
published or subject to peer review; 3)the error rate of a
particular technique; 4)the existence and maintenance of
standards controlling the techniques operation; and
5)acceptance of the theory in the scientific community. Id. at
591, 593-94.

iii. Because the standard is flexible, the proponent of the expert

testimony need not satisfy all of the Daubert factors.

b. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)

i. The Supreme Court made it clear that Daubert applies to expert

testimony generally, and not only testimony on scientific mattes.
Id. at 140.

ii. The Court said of the Daubert factors that where they are
reasonable measures of reliability, courts should use those
guidelines. Id. at 150. However, the ultimate choice of which
factors to apply depends upon the nature of the issue, the
experts area of knowledge, and the subject of the testimony. Id.

iii. The Court emphasized the discretion of trial judges and said that
the validity/reliability determination is meant to be a flexible
one. Id.

c. U.S. v. Hicks, 389 F.3d 514 (5th Cir. 2004)

i. In Hicks, the court elaborated on the flexible nature of the

Daubert test

d. Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir. 1999).

i. In Black, the Court observes that Kumho Tire refines in a

common-sense way, but does not undermine, the use of the
specific Daubert factors as a reference point for gauging the
reliability of potential expert testimony. Id. at 310.

ii. The Fifth Circuit attempts to set out a framework for other courts
to follow, stating in the vast majority of cases, the district court
first should decide whether the factors mentioned in Daubert are
appropriate. Once it consider the Daubert factors, the court them

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 can consider whether other factors, not mentioned in Daubert, ar
relevant to the case at hand. Id. at 311-12.

e. Pipitone v. Biomatrix, 288 F.3d 239, 245 (5th Cir. 2002)

i. The Fifth Circuit acknowledged that the Daubert factors may not
be pertinent in asserting reliability on a particular issue.

f. Primose Operating Co. v. Natl Am. Ins. Co., 382 F.3d 546 (5th Cir.
2004)

i. In Primrose Operating Company, Fifth Circuit stated that

vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible
evidence.

2. Fed. R. Evid. 702 (Tigar, Examining Witnesses, p. 368 offers more information)

a. FRCP 702 was amended in an effort to incorporate Daubert and its

progeny into the text of the rule and to hopefully clarify some of the
ambiguities of Daubert that have led to conflict in lower courts.

i. The Amendment reads as follows:

(a) 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, provided that (1) the testimony is based
upon sufficient facts or data; (2) the testimony is the
product of reliable principles and methods; and (3)the
witness has applied the principles and methods
reliability to the facts of the case.

ii. The Advisory Committee identifies from case law five factors to
be considered in performing Dauberts gate keeping function:
(1)whether the experts testimony results from matters growing
naturally and directly out of research the expert has conduct
independent of litigation, or matters that were developed
expressly for purposes of testifying; (2) whether the expert has
extrapolated from an accepted premise to an unfounded
conclusion; (3)whether the expert has accounted for obvious
alternative explanations; (4)whether the expert is applying the
same standard of care in the litigation as the expert would
normally apply outside of litigation; and (5)whether the experts
field of expertise is known to reach reliable results on the subject
of the proferred testimony.

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 (a) The Advisory Committee reminds practitioners that all
of these factors remain relevant to the determination of
the reliability of expert testimony under the Rule as
amended, and that other factors may also be relevant,
and that no single factor is necessarily dispostive of the
reliability of a particular experts testimony.

III. Expert Evidence: Procedural Issues on Admissibility

A. Introduction

1. This portion of the presentation contains an overview of methods of making a

Daubert challenge under federal law. It also focuses on of preserving error in the
admission or exclusion of expert testimony, as discussed in amendments to Fed.
Rule of Evidence 103.

B. Summary of the Legal Standard

1. Federal Law

a. Federal law requires the proponent of expert testimony to prove that the
testimony is reliable by a preponderance of the evidence. See Tanner v.
Westbrook, 174 F.3d 542, 547 (5th Cir. 1999).

b. An objection to expert evidence must be made and preserved in a timely

fashion in pretrial proceedings or during trial. If the court merely grants
or denies a motion in limine, then no error is preserved, with the limited
exception set forth in Federal Rule of Evidence 103, which relieves a
party to further object to a definitive ruling on the record admitting or
excluding evidence.

c. In at least the Fifth Circuit, a ruling on a motion in limine does not

preserve error for appellate review (if there is no definitive ruling).
Wilson v. Waggener, 837 F.2d 220, 222 (5th Cir. 1988).

d. A denial of a pretrial motion in limine or to strike does not preserve

error, and that is necessary to object to the evidence when it is offered at
trial. Rojas v. Richardson, 703 F.2d 186, 189 (5th Cir. 1983) (requiring
the party objection at trial because it gives the trial court an opportunity
to reconsider the graounds of the motion [in limine] in light of the actual
instead of hypothetical circumstances at trial.)

e. The U.S. Supreme court determined that the abuse of discretion

standard is the proper standard of review for a trial courts decision to
admit or exclude expert testimony under Daubert. General Electric Co.
v. Joiner, 522 U.S. 136 (1997). .

f. Those who wait until the appeal to raise, for the first time, a challenge to
the reliability of expert testimony do so at their peril. See, e.g., McKnight
v. Johnson Controls Inc., 36 F.3d 1396, 1406-07 (8th Cir. 1994)

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 (rejecting argument that Daubert requires a trial court to raise reliability
issues sua sponte, and holding that the issue cannot be raised for the first
time on appeal absent plain error.).

g. Under federal law, the preservation of error on challenge to an expert

under Daubert or Kumho Tire is predicated upon a proper motion to
exclude the experts evidence (or a motion in limine). The changes to
Federal Rule of Evidence 103 codify this rule.

C. Conclusions

IV. Additional Procedural Means to Exclude Expert Evidence

A. Introduction to Motions in Limine

1. Introduction

a. In limine means at the threshold; at the very beginning; preliminarily.

Blacks Law Dictionary 708 (5th ed. 1979). The term is used in the
broad sense to refer to any motion to exclude anticipated prejudicial
evidence before the evidence is actually offered. Luce v. U.S., 469 U.S.
38, 40 n.2 (1984).

b. While motions in limine usually seek to exclude evidence, they may also
be brought to request admission of evidence. See, e.g., Byrd v. Guess,
137 F.3d 1126, 1134 (9th Cir. 1998); U.S. v. Selico, 1998 U.S. Dist.
LEXIS 9832, 5 (E.D. La. Jun. 29, 1998).

c. Motions in limine are usually brought before trial; but, they can be
brought at any time. The form of such a motion is not controlled by any
rule or case law.

d. A motion in limine should:

i. Request appropriate relief. The requested ruling should be broad

enough to accomplish the intended results but at the same time,
counsel should be careful to insure that the motion does not
attempt to cover so much that the judge will be unlikely to grant
such a blanket order.

ii. State that no remedial action taken by the court at the time the
evidence is offered will counteract the damage caused.

iii. State the grounds for moving for exclusion of this evidence.

iv. State the grounds on which counsel believes that the opposing
party will offer this evidence.

v. Indicate specifically the particular evidence being challenged.

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 vi. Request that the court prohibit all parties and witnesses as well
as counsel from raising the evidence in question.

vii. Request that opposing party be prohibited from referring to or

offering the prejudicial evidence either directly or indirectly,
including during voir dire, opening statement, questions to or
testimony by witnesses, and closing argument.

2. Discretionary Ruling in Federal Courts

a. It is universally held that motions in limine are purely discretionary and

the court is not required to rule upon them. Jones v. Stotts, 59 F.3d 143,
146 (10th Cir. 1995) .

b. As a result, any in limine ruling is essentially an advisory opinion by the

court, subject to change during the course of trial. U.S. v. Allison, 120
F.3d 71, 75 (7 th Cir.) (There is certainly no per se rule against the
direct courts changing its view on an evidentiary ruling in the course of
the litigation.), cert. denied, 118 S. Ct. 455 (1997); U.S. v. Yannott, 42
F.3d 999, 1007 (6th Cir. 1994) (A ruling on a motion in limine is no
more than a preliminary, or advisory, opinion that falls entirely within
the discretion of the [] court [which] may change its ruling at trial for
whatever reason it deems appropriate.). cert. denied, 513 U.S. 1182
(1995).

c. Since Kumho Tire, however, the failure of the trial court to make a
motion in limine ruling on Daubert issues in the summary judgment
context may constitute an abuse of discretion. See, e.g., In re TMI Litig.,
193 F.3d 613 (3d Cir. 1999) However, like other interlocutory rulings,
decisions on motions in limine are generally not final appealable orders.
See Coursen v. A.H. Robins Co., 764 F.2d 1329, 1342 (9th Cir. 1985),
revised opinion 773 F.2d 1049 (9th Cir. 1985).

3. The Amendment to Rule 103 to Address the Appealability of In Limine Rulings

a. Federal courts have long been divided on whether limine rulings are
appealable.

b. For example, the Fifth Circuit has followed the general rule that
ordinarily a motion in limine by itself is insufficient to preserve an issue
for review on appeal. Wilson v. Waggener, 837 F.2d 220, 222 (5th Cir.
1988). Under this rule, a party whose motion in limine has been
overruled must object when the evidence the party sought to exclude is
about to be introduced at trial. U.S. v. Tanneholl, 49 F.3d 1049, 1057
n.10 (5th Cir.), cert. denied, 516 U.S. 859 (1995); Wilson, 837 F.2d at
222.

c. Federal Rule of Evidence 103 has been amended to address this issue.
The rule now contains an additional sentence which states Once the
court makes a definitive ruling on the record admitting or excluding

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 evidence, either at or before trial, a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.

V. Preparing to Challenge An Opponents Expert Witness

A. File Interrogatories and Requests for Production of Documents

1. Always request information regarding your opponents expert witness and his or
her opinions regarding the subject matter of the lawsuit as early as possible in the
case. Focus on the Robinson factors. Request a copy of the expert witnesss
curriculum vitae, all written reports regarding the lawsuit, and any supporting
documents upon which the expert has relied.

B. Get a Detailed Expert Report

1. Get a thorough report from your opponents expert.

C. Depose your Opponents Expert

1. Before having your notice of deposition and subpoena duces tecum served on the
expert, contact opposing counsel to work out a mutually convenient date.

2. Include in your subpoena duces tecum requests for all documents upon which the
witness has relied in forming his opinion, including all published treatises and
articles. Ask for all treatises and articles he has written on the subject matter at
issue. During the deposition, you should cover completely the following areas:
(1)All education and training; (2)All professional affiliations; (3)All prior
employment history; (4)All treatises and articles authored by the expert regarding
the subject of the matter of the lawsuit; (5)All persons with whom the expert has
discussed the case; (6)All contacts and relationships with opposing counsel;
(7)An explanation of each opinion or theory and the factual basis for each
opinion using the Daubert factors; (8)Prior experience as an expert witness,
including prior depositions, trials, and consultations with attorneys; (9)All
articles and treatises upon which the expert has relied; and (10)The basis of the
experts fee and the amount of time he has spent on the case.

D. Methods to Challenge the Opponents Expert

1. Before Trial: Motion to Strike or Motion in Limine

a. Introduction

i. Before trial, you may file a motion to strike an expert witness or

motion in limine on several basis: (1)opposing counsel failed to
timely and properly designate the witness under the Federal
Rules of Evidence; (2)opposing counsel failed to timely identify
the witness and/or the witnesss opinions in response to
interrogatories and/or to supplement same; (3)opposing counsel
failed to produce expert report, curriculum vitae, and/or other
documents in response to document requests and/or failed to

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 supplement the same; (4)the witness will not assist the trier of
fact; (5)the witness is not qualified; (6)the witness is relying on
an improper standard; (7)the witness is making a legal
conclusion.

b. There are several forms of evidence to support your motion to exclude an

expert witness.

i. Affidavits From Your Own Experts

(a) Affidavits can discuss experts qualifications and

training needed to render an expert opinion or to perform
the type of work at issue.

ii. Supporting Documentation

(a) For example, documents from professional associations

and documents produced in the case which call into
doubt the experts qualifications or methodologies
should be introduced into evidence.

(b) Learned treatises and articles which question the

methodology used may also be useful in discrediting the
experts testimony and her usefulness to the jury.

iii. Live Witnesses

(a) Witnesses may be called live at a hearing on striking or

limiting an experts testimony, although their use should
be limited since you give your opponent a free shot at
cross-examining your witnesses.

E. At Trial: Direct Examination

1. If a judge does not sustain your motion in limine, you must object.

F. At Trial: Cross Examination

1. If the judge permits the proferred expert witness to testify, you should conduct a
thorough cross examination of the witness.

2. Educate the Jury

a. Explain to the jurors early in the case the legal issues involved so that
they can evaluate and compare expert opinions to the legal standard.

3. Challenge the Experts Credentials

a. Professional testifiers frequently inflate their curriculum vitae. Check

on the status of their memberships with professional organizations for

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 active status; check their publications to insure that they in fact appear as
authors; obtain through deposition subpoena copies of all materials they
claim to have authored, including seminar speeches.

4. Establish Bias

a. Test the expert for bias: (1)from being paid by side for whom the expert
is testifying; (2)from always or usually testifying for the same side;
(3)from engaging in some business other than testifying; (4)from
testifying frequently and always making the same conclusion; and
(5)from a personal interest in the subject matter.

5. Establish Improper Grounds for Opinions

a. You can argue that the witness is testifying based on his own subjective
standard or expectation or that his opinion is full of legal conclusions.

VI. Appendix A: Checklists on Expert Issues

A. Motion to Exclude/Motion to Strike Experts (Evidence to Use to Support)

1. Use deposition excerpts

2. Always Attach Affidavits From Your Experts

a. with attachments publications, exhibits, etc.

b. criticize reports and methodology

3. Utilize Other Discovery

a. Interrogatories, Requests for Admission, Requests for Disclosure

b. Expert Reports

4. Live Testimony Can Be Used At Hearing if Allowed

5. Prior History of Expert Sought To Be Excluded

a. Other orders of courts

b. Other reports/published papers

c. Other depositions

B. Offer of Proof If Expert Excluded (Items to Include)

1. Deposition Excerpts From Your Expert (with Exhibits)

2. Affidavits with Exhibits (Include Expert Report)

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 a. Your Expert

b. Other Experts

3. Offer Q & A Outside of Jury

4. Offer Stipulation With Regard to Evidence That Would Be Offered At Trial

5. Other Discovery (Depositions of Other Experts, Interrogatories, Etc.)

6. Other Rulings of Courts on the Experts Qualifications

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