DAUBERT HOW TO BOLSTER AND ATTACK EXPERT WITNESSES RAYMOND L. THOMAS, JR.,

DAUBERT:
HOW TO BOLSTER AND ATTACK EXPERT WITNESSES
RAYMOND L. THOMAS, JR., McAllen
Kittleman Thomas & Gonzales
State Bar of Texas
25TH ANNUAL
ADVANCED EVIDENCE AND DISCOVERY COURSE 2012
Dallas - April 26-27, 2012
San Antonio – May 24-25, 2012
CHAPTER 18
Raymond L. Thomas
Kittleman, Thomas & Gonzales, LLP
4900-B North 10th
McAllen, Texas 78504
[email protected]
www.ktglawfirm.com
Ray Thomas is a board certified civil trial lawyer and
name partner with the McAllen law firm of Kittleman, Thomas
& Gonzales, LLP, a 17 lawyer South Texas law firm. A Fellow
of the International Society of Barristers and an Advocate with
the American Board of Trial Advocates, Thomas has
successfully litigated a broad range of complex civil cases on
both sides of the docket, including catastrophic injury and
wrongful death, anti-trust and business torts, construction and
environmental, class actions, consumer fraud, insurance bad
faith and professional liability. Thomas has won several multimillion jury verdicts and settlements, obtaining more than
$250 million in verdicts, judgments and settlements for his clients, including two cases listed in the Top
100 Verdicts in 2005 and 2006 as reported by The National Law Journal.
Thomas is an AV-Rated lawyer (Preeminent 5.0 out of 5) through Martindale Hubbell Peer
Review Rating Service. Also designated by his peers multiple years as a Texas Super Lawyer, as
published in Texas Monthly, Thomas has been an invited speaker and panelist for audiences in the
United States, Mexico and Central America, though the engagement he is most proud of is having been
asked to give the commencement address to the graduating seniors of his hometown community.
Thomas has appeared in national and international media, such as ABC News, Univision, Televisa,
Telemundo, U.S. News & World Report, The Wall Street Journal, The New York Times, Reforma, El
Universal, El Sol de Mexico, Milenio, The Texas Lawyer, and the ABA Journal, on topics ranging from
specific cases to issues facing the legal profession.
Thomas has served his profession as a Director of the State Bar of Texas, President of the Texas
Young Lawyers Association, Commissioner of the Texas Access to Justice Commission, as well as
numerous other bar related positions. Appointed by the Texas Supreme Court, Thomas served several
years on the Grievance Oversight Committee. Thomas is a frequent speaker at continuing legal
education seminars, including the Advanced Civil Trial Seminars sponsored by Texas Bar CLE. A
recognized authority on cross-border litigation, Thomas was appointed as honorary counsel to the
Mexican Consulate in McAllen by the government of Mexico, a position he continues to serve. In 2004,
Thomas received special recognition by the Governor of Zacatecas, Mexico, for his legal work on behalf
of migrant families.
Thomas serves his community through various civic organizations, including the Vannie Cook
Children’s Cancer Foundation and the Board of Governors for the Boys & Girls Club of McAllen. He is a
former President of the Club and the Chair of a Capital Campaign which successfully raised more than
$5 million to build a new, state-of-the-art club house for underprivileged youth.
Married more than 23 years and an active father, Thomas is an ordained permanent deacon in
the Roman Catholic Church. He is an active partner in GOSPA Records, a Christian recording studio,
record label, and music publisher dedicated to helping young artists spread the Gospel through
inspiring music, video and television programming.
Daubert: How to Bolster and Attack Expert Witnesses
Chapter 18
TABLE OF CONTENTS
I.
INTRODUCTION................................................................................................................................................... 1
II.
BOLSTERING AN EXPERT WITNESS ............................................................................................................... 1
A. Protect against the release of drafts and notes to eliminate their exploitation by opposing counsel ............... 1
B. Assist your expert in the drafting of the expert report..................................................................................... 2
C. When your expert is deposed, determine whether it is necessary or strategically a good idea to ask
questions yourself ............................................................................................................................................ 2
D. Help ensure your expert is viewed credibly at trial ......................................................................................... 3
E. At trial, consider using your expert’s direct to deal with negative testimony in preparation for crossexamination ..................................................................................................................................................... 4
III. ATTACKING AN EXPERT WITNESS ................................................................................................................ 4
A. Cast a wide net and retrieve as much information as possible about the adverse expert ................................ 4
B. Entertain all available bases for excluding the adverse expert’s opinion ........................................................ 4
1. The expert is not qualified ....................................................................................................................... 4
2. The expert is offering opinions beyond his/her area of expertise ............................................................ 4
3. The opinions offered are not those of the expert ..................................................................................... 5
4. The methodology employed is not reliable ............................................................................................. 5
5. The methodology may be reliable but it has not been properly applied by the expert ............................ 5
6. The expert is relying on unreliable data .................................................................................................. 5
7. The expert is relying on factual assumptions that are false ..................................................................... 5
8. The expert is relying on inadmissible evidence that is not the type of evidence relied on by
experts in the field ................................................................................................................................... 5
9. The expert is offering opinions on issues of law ..................................................................................... 5
10. The expert is offering opinions that are not helpful to the trier of fact—i.e., the opinions
are irrelevant ............................................................................................................................................ 5
11. The expert’s opinions are unduly prejudicial .......................................................................................... 6
12. The expert’s opinions are cumulative or duplicative ............................................................................... 6
13. The expert’s opinions as to causation are unreliable because the expert has not ruled out other
plausible causes ....................................................................................................................................... 6
C. Exploit an adverse expert by using him to bolster your own expert ............................................................... 6
D. At trial, use your closing argument to launch a final attack against an adverse expert ................................... 6
i
Daubert: How to Bolster and Attack Expert Witnesses
Chapter 18
Kloesel is one of many examples that underscores
the importance of knowing what it fully means to
bolster or attack an expert. For an attorney to bolster
his expert, it is not enough to educate the expert on
how to damage the other side’s case. Bolstering an
expert also requires facilitating the expert’s
understanding of how to avoid damaging his own
side’s case. On the other hand, attacking an adverse
expert entails eliminating or marginalizing the adverse
expert’s value to an opponent’s case, while crafting
ways to utilize the adverse expert to one’s own benefit.
The goal of this paper is to set out a few thoughts and
strategies on how to accomplish all of this.
DAUBERT: HOW TO BOLSTER AND
ATTACK EXPERT WITNESSES
I.
INTRODUCTION
Both your expert and an adverse expert have the
capacity to be your friend or foe. Consider the
testimony of the insurance agent’s defense expert in
Insurance Network of Texas v. Kloesel, 266 S.W.3d
456 (Tex. App.—Corpus Christi 2008, pet. denied). In
that case, restauranteurs had been sued by customers
who contracted hepatitis from eating the restaurant’s
food. The restauranteurs settled those claims and then
successfully sued their insurance agent for negligence
based on the agent’s failure to procure a policy that
covered “communicable disease.” In upholding the
negligence finding, the appellate court relied heavily
on the testimony of the agent’s own expert.
When asked whether an insurance agent, in
procuring a liability policy for a restaurateur, acts
prudently by obtaining a policy that excludes
communicable disease claims, the agent’s expert
responded: “Ideally, you would want communicable
diseases to be covered, but you can’t get everything
covered.” Id. at 473. When previously asked the same
question during his deposition, the expert responded: “I
would agree that that’s not the desired coverage form.”
Id.
The expert further testified that, if the
restauranteurs had sought a policy from him, he would
have “been able to get the proper restaurant
coverage”—i.e., he would have been able to provide
them with a policy that covered communicable disease.
Id. at 473-74. The expert’s cross-examination then
concluded with the following exchange:
II. BOLSTERING AN EXPERT WITNESS
A. Protect against the release of drafts and notes
to eliminate their exploitation by opposing
counsel
Dana Corp. v. Microtherm, Inc. demonstrates the
importance of protecting against the release of your
expert’s drafts and notes. No. 13-05-00281-CV, 2010
WL 196939 (Tex. App.—Corpus Christi Jan. 21, 2010,
pet. granted, jugm’t vacated w.r.m.). In that case,
Microtherm sued Dana and others alleging they sold
defective electrical components (thermistors), which
Microtherm had incorporated into its water heaters.
Microtherm’s expert testified that the thermistors failed
because of contamination during the assembly process.
Dana complained that the opinion was unreliable
because the expert did no testing to rule out other
sources of contamination. To support this argument at
trial and on appeal, Dana exploited—albeit
unsuccessfully— the expert’s initial draft report, which
mentioned another possible cause of the failures. This
other cause had been eliminated from the expert’s final
report. Id. at *9-10.
On December 1, 2010, Federal Rule of Civil
Procedure 26 was effectively amended to extend the
work product privilege to the work a testifying expert
does to prepare his report in a case, including
discussions with counsel and draft reports. When
Federal Rule 26 was amended, the Texas Supreme
Court asked the Supreme Court Advisory Committee
(“SCAC”) to examine whether those amendments
should be incorporated in some fashion into the Texas
Rules of Civil Procedure. As of this writing, the
SCAC last addressed this matter at a meeting held on
January 28, 2011. At the meeting, a strong majority of
SCAC members rejected the idea of Texas changing its
rules to resemble the federal amendments. Until a
change is made, Texas practice will continue to
provide that any draft reports and discussions between
counsel and a testifying expert are discoverable.
When practicing in Texas courts, it is important to
clarify to your expert (other than purely consulting)
that any documents s/he creates is likely discoverable.
Q. [A]s the owner of a restaurant, would you
agree with me that it would never be prudent
to purchase a CGL policy that excluded
coverage for communicable disease?
A. If it was the only policy I could get. I
wouldn’t want to—
Q. But—
A. —but it might—if—if it was the only
policy that was available, if every insurance
company in the world says, “were not going
to write—we’re not going to cover
communicable—or
whatever,
exclude
communicable disease,” then rather than go
without coverage generally, you might do it.
Q. But if you’re going to have coverage, you
want to make sure your coverage includes
communicable disease.
A. Sure.
Id. at 474.
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Daubert: How to Bolster and Attack Expert Witnesses
Chapter 18
Beyond ensuring Daubert compliance, you should
also be prepared and willing to edit your expert’s
report to achieve a clear, concise, and comprehensive
report. Because an expert may often overlook a
layperson’s ability to decipher technical language in
the report, it may be on you to transform the technical
language into something that a judge and jury will
more readily understand. Track and keep your changes
so you and your expert can readily demonstrate that
your edits were not substantive or otherwise invade the
province of the expert’s opinions.
Sometimes,
attorneys will sit with their expert and provide input as
the expert is actually preparing the report. Obviously,
when the attorney input includes telling the expert
what his/her opinions are, the line has been crossed.
But helping an expert identify the issues in the case
which need to be addressed, and helping the expert
identify the testimony, documentary and physical
evidence to support his/her opinions is not only
permissible, but prudent.
First, confirm that the expert clearly understands that
anything s/he writes is very likely to end up in the
hands of opposing counsel. Second, confirm that the
expert will not commit anything to paper in the way of
an opinion or report without first discussing it with
you. This ensures that no tentative or erroneous
concepts become fair game for the other side to
exploit. Third, make clear that the expert’s opinion
may evolve as additional information develops in the
case. Wendy Couture, LITIGATORS ON EXPERTS:
STRATEGIES FOR MANAGING EXPERT WITNESSES
FROM RETENTION THROUGH TRIAL 23 (American Bar
Association 2010). As the rules of the road continue to
change throughout jurisdictions, such as the Rule 26
amendment, we cannot remain on auto-pilot assuming
every expert knows the Texas rules. Particularly
experts from other states may believe the expert’s
drafts are no longer discoverable. This can result in a
costly blunder.
In cases where both sides retain experts, attorneys
may enter into a written stipulation that modifies
Texas’s discovery rules to provide that:
(1)
communications between counsel and any expert,
including a testifying expert, are off bounds from
discovery; and (2) it is only the expert’s written report
and materials or data the expert actually relies on in
forming his opinion(s) and report(s) that are
discoverable. The potential hazard with this, however,
is the possibility that a new party friendly to the
opposing side will join the suit. If this occurs, the new
party will have no obligation to play by the terms of
any agreement you made with another party.
C. When your expert is deposed, determine
whether it is necessary or strategically a good
idea to ask questions yourself
One typically does not ask questions of his own
expert at that expert’s deposition unless, of course, you
are taking a trial deposition because you anticipate
calling the expert by deposition rather than live. The
obvious thought is that one will have the ability to
develop opinions and other supporting literature or
scientific materials when one calls the expert to testify
at trial. There are, however, some circumstances in
which it behooves one to ask questions.
First, if your expert has professional obligations
that create a meaningful risk that s/he may be
unavailable for trial, you should ask questions to
preserve the testimony that you would want to show
the judge in a pretrial setting or to the jury at trial.
Many experts have full schedules and some do not
respond well to the fluid changes of trial schedules. At
least consider proving up the expert’s qualifications
and report. Asking these basic questions will ensure
that your expert has a voice that is heard despite his/her
absence.
Second, if your expert made an obvious mistake
during the deposition, or gave an answer which you
know can be misconstrued, consider asking a few
questions to clarify or amplify those areas of
examination that need some clean up.
Third, if your client intends to settle rather than
take the case to trial, you may want to use the expert to
educate your opponent about every weakness in his
case.
Finally, it is critical to ask questions if you believe
opposing counsel’s questioning has made your expert
and his opinions vulnerable to a Daubert challenge. If
B.
Assist your expert in the drafting of the expert
report
Between you and your expert, it is your
responsibility to be the Daubert compliance expert.
Many experts are unaware of, or do not fully
appreciate, the mandates of Daubert. When your
expert provides you with his report, you must ask
yourself the following questions to ensure that the
report passes muster:
•
•
•
•
Is each opinion that the expert will express clearly
stated in the report?
Is the basis for each opinion stated?
Does the expert list all data he considered in
forming the opinions?
Does this data need to be produced to the other
side, and, if so, has it?
Ensuring that these questions are addressed early on
will vastly improve the likelihood of getting your
expert’s opinions admitted.
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Daubert: How to Bolster and Attack Expert Witnesses
Chapter 18
to spend some time reviewing your expert’s credentials
during direct examination and compare your expert’s
qualifications against your opponent’s. The use of a
comparison chart can be helpful. More risky, but
potentially more effective, develop the disparity in
qualifications during your cross-examination of the
opposing expert. Make sure, however, that the
differences are significant enough that jurors will
recognize it and care about it.
Lastly, ensure that your expert understands that
his/her demeanor and appearance will make a
difference on how the jury receives their opinions. A
positive demeanor consists, in part, of the following:
this is the case, you may want your expert to clarify
testimony or explain opinions to thwart any later
attack. The proponent of the expert carries the burden
of proof at the Daubert hearing. Some trial courts will
consider affidavits from the expert, other courts will
not. A few trial courts require or strongly prefer the
expert to testify live at the Daubert hearing, but most
do not. Most trial courts, however, agree that
deposition testimony of the expert is admissible at the
Daubert hearing. Thus, consider taking advantage of
the deposition to develop the testimony you need to
carry your expert through the Daubert hearing, and
eliminate the need, the expense, and the risk of
bringing the expert live to the Daubert hearing.
•
D. Help ensure your expert is viewed credibly at
trial
For an expert witness, credibility is everything.
No matter how rigorous the preparation, how well
developed the opinion, how unfailingly accurate the
work, it may all amount to nothing if the expert cannot
credibly explain his/her opinion.
An expert’s
credibility goes to the weight rather than the
admissibility of the opinions. See In re D.J.R., 319
S.W.3d 759, 771 (Tex. App.—El Paso 2010, pet.
denied). While appellate courts can second guess an
expert’s qualifications and the strength of his/her
opinions, they cannot [okay, they are not supposed to]
second guess credibility. As expressed by one court of
appeals in a case involving “a classic battle of the
experts”:
•
[T]he jury is the sole judge of the witnesses’
credibility and of the weight to be given their
testimony. . . . The jury was informed about
the qualifications of the experts. It heard
their testimony, saw their demeanor, and
judged for itself the credibility and the
expertise of those experts. We will not step
into the jury’s shoes to overturn its verdict
when expert opinions on both sides conflict.
•
Lynch v. Noram Energy Corp., No. 06-99-00073, 2000
WL 708419, at *8 (Tex. App.—Texarkana May 30,
2000, pet denied) (mem. op., not designated for
publication).
How you bolster your expert’s credibility should
be influenced by whether there is a competing expert.
When there is a battle of the experts, you want to
immediately assess your expert’s strengths and
weaknesses with those of the adverse expert. Based on
this assessment, you can then determine how best to
bolster your witness.
For example, if you believe that the jury would
conclude that your expert’s credentials substantially
exceed the adverse expert’s credentials, you will want
•
3
Preparation and organization.
Just as jury
appreciate and reward well prepared and
organized lawyers, they also appreciate and tend
to believe more those experts who are well
prepared and well organized answers. The direct
examination should organized in a manner easy to
follow
and
demonstrate
the
expert’s
qualifications, command of the subject matter,
thoroughness of the analysis, the certainty of the
opinions and conclusions, and the solid basis or
grounds therefor. In structure, a good answer
begins with a premise or conclusion and then
describes the basis for the response or the
underlying facts.
Conversational Language. There is no reason
why an expert must rely heavily on jargon or
technical terms while testifying. An expert who is
able to testify in conversational terms clearly
indicates a willingness, perhaps even an
eagerness, to make the entire testimony accessible
to every member of the jury. If the expert fails to
communicate in a language understood by the
jury, the fault lies principally with the lawyer who
failed to spend enough time preparing the expert.
Varied Format. Varying the format of one’s
answers indicates that they are the product of
thoughtful consideration. Word choice, sentence
structure, length of answer, and even tone of voice
should be adjusted in order to convey the precise
meaning called for by the specific question.
Illustration. Testimony is strengthened when it
can be illustrated through the use of analogies,
stories, examples, and vivid descriptions. Further,
the use of well-prepared, easy to understand visual
aids greatly enhances the expert’s presentation.
During the testimony, ask the trial judge to permit
the expert to get out of the witness chair and stand
in front of the jury while giving opinions using
visual aids.
Daubert: How to Bolster and Attack Expert Witnesses
Chapter 18
licensing and other credentials disclosed in various
licensing directories (e.g., the American Board of
Medical Specialties); (3) credentials listed by the
expert in an expert directory; (4) social networking
sites that may contain the expert’s profile (e.g.,
LinkedIn, Facebook); (5) resumes filed by the expert in
prior litigation (typically found by searching
collections of court-filed documents, like those
available through LexisNexis, TADC, TTLA); (6)
locating prior reports, affidavits, depositions, and trial
testimony of the expert; (7) locating all publications of
the expert; (8) locating unpublished papers and
presentations made by the expert at seminars; (9)
public data searches, which may reveal criminal
history, litigation history, and other nuggets; and (10)
associations which may reveal bias. Also use listserves
to find other lawyers who have experience with the
expert, and take the time to call and debrief the lawyer
and ask for all information s/he has on the expert.
Try learning what you from other lawyers and from
reading prior testimony about the expert’s expected
demeanor and plan your attack accordingly. Finally,
dwell on the expert’s compensation at least in
discovery. In one case, I was able to prove the defense
auto expert had been retained over and over by the auto
industry and had received over $10 million in
compensation over a ten year period. The jaws of each
of the jurors dropped in perfect unison.
See generally Steven Lubet, EXPERT TESTIMONY: A
GUIDE FOR EXPERT WITNESSES AND THE LAWYERS
WHO EXAMINE THEM Chp. 2 (National Institute for
Trial Advocacy 1998).
E.
At trial, consider using your expert’s direct to
deal with negative testimony in preparation for
cross-examination
If your expert’s opinion has its vulnerabilities, a
question arises as to how those vulnerabilities should
be addressed: should you bring out the negative
testimony on direct, or should you simply prepare the
expert to deal with it on cross. This question cannot be
answered in the abstract, as every case is different. If
you decide to bring out the negative testimony on
direct—which allows you to deal with it on your
terms—you need to decide the “how” and the “when.”
Because it is widely believed that jurors remember
what they hear first and what they hear last, you may
consider disclosing the negative testimony somewhere
in the middle of your direct. If going this route,
however, it is important to provide the expert with an
opportunity to give a full and complete explanation as
to why the negative testimony does not ultimately
change his opinions.
III. ATTACKING AN EXPERT WITNESS
A. Cast a wide net and retrieve as much
information as possible about the adverse
expert
Though you may never get all the information you
desire regarding an adverse expert, you have to try.
Dig, dig, dig. Never stop digging. The internet is an
amazing tool. Information is power, and the internet is
a powerful tool to find information on adverse experts,
as well as your own. Experts tend to shield negative
information about their past, a trait that does not
belong just to experts, but is universally human.
Obviously, you want to obtain all of the opinions
the expert will express and the bases and reasons for
each opinion. You can go beyond this, however, by
seeking the information the expert considered, but
ultimately rejected. See Bigelow v. New York Lighter
Co., Inc., No. A-03-CA-340-LY, 2005 WL 6742497, at
* (W.D. Tex. June 27, 2005) (interpreting Federal Rule
26’s reference to “data and information” as referring to
“what the expert saw, heard, considered, read, thought
about, or relied upon in reach the conclusions and
opinions to be expressed”). This information may be
valuable because it can provide clues as to why the
expert’s opinions are problematic.
Ideally, you want to know more about an adverse
expert’s professional background than what is provided
to you during the course of litigation through a resume
or CV. To find out more, try the following resources:
(1) credentials displayed on the expert’s website; (2)
B.
Entertain all available bases for excluding the
adverse expert’s opinion
1. The expert is not qualified
This argument can take more than one form. A
witness may have some experience or expertise in a
particular area but not enough to qualify as an expert.
Alternatively, s/he may have general expertise in a
discipline but insufficient experience in the relevant
subspecialty to testify as an expert on the issue in
question
2.
The expert is offering opinions beyond his/her
area of expertise
There are numerous ways in which an expert’s
opinions can stray beyond his/her area of specialized
knowledge. See, e.g., Yard v. DaimlerChrysler Corp.,
44 S.W.3d 238, 241–42 (Tex. App.—Fort Worth 2001,
no pet.) (physician qualified to testify about medical
cause of driver’s death, but not about whether airbag
failure caused the death); Morton Int’l v. Gillespie, 39
S.W.3d 651, 655–56 (Tex. App.—Texarkana 2001,
pet. denied) (mechanical engineer qualified to testify to
effect on driver’s motion of delay in airbag
deployment, but not about technical issues related to
airbag technology); Arlington Mem’l Hosp. Found.,
Inc. v. Baird, 991 S.W.2d 918, 920–21 (Tex. App.—
Fort Worth 1999, pet. denied) (nurse permitted to
4
Daubert: How to Bolster and Attack Expert Witnesses
Chapter 18
testify about reasonable standard of nursing care, but
not to give opinion regarding cause of corneal burn
suffered by plaintiff).
7.
The expert is relying on factual assumptions that
are false
“When an expert’s opinion is based on assumed
facts that vary materially from the actual, undisputed
facts, the opinion is without probative value and cannot
support a verdict or judgment.” Burroughs Wellcome
Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). An
opinion could also be conclusory when it is based on
tests or data that do not support the conclusions
reached. Whirlpool Corp. v. Camacho, 298 S.W.3d
631, 637 (Tex. 2009). In either instance, the expert’s
opinion cannot be considered probative evidence. Id.
3.
The opinions offered are not those of the expert
Though an expert is permitted to rely on the
opinions of other experts to the extent that they are of
the type that would be reasonably relied upon by other
experts in the field, an expert witness must in the end
be giving his own opinion. He cannot simply be a
conduit for the opinion of an unproduced expert. See
generally Southland Lloyds Ins. Co. v. Cantu, No. 0409-00705-CV, 2011 WL 1158244, at *4-5 (Tex.
App.—San Antonio Mar. 30, 2011, pet. filed)
(containing a detailed discussion of the propriety of
one expert “parroting” the opinion of another expert).
8.
The expert is relying on inadmissible evidence
that is not the type of evidence relied on by
experts in the field
Texas Rule of Evidence 703 allows an expert to
base an opinion on information otherwise inadmissible
in evidence, if this type of information is reasonably
relied on by experts in the witness’s field. Whether
experts in a field rely on such information and are
reasonable in doing so is a matter for preliminary
determination by the trial court under Texas Rule of
Evidence 104(a) and 702. In accordance with its
gatekeeping role, the trial court must determine that the
information the expert relies on is reliable and that the
expert’s reliance on this information is reasonable.
See, e.g., Collini v. Pustejovsky, 280 S.W.3d 456, 466
(Tex. App.—Fort Worth 2009, no pet.) (expert
witness’s report, which briefly stated the conclusions
of the physicians who examined plaintiff but did not
provide any background on those physicians’
experience or training, did not establish that expert’s
reliance on the data was reasonable).
4.
The methodology employed is not reliable
“[A]n expert’s testimony is unreliable even when
the underlying data are sound if the expert draws
conclusions from that data based on flawed
methodology. A flaw in the expert’s reasoning from
the data may render reliance on a study unreasonable
and render the inferences drawn therefrom dubious.
Under that circumstance, the expert’s scientific
testimony is unreliable and, legally, no evidence.”
Merrell Dow Pharmaceuticals, Inc. v. Havner, 953
S.W.2d 706, 714 (Tex. 1997).
5.
The methodology may be reliable but it has not
been properly applied by the expert
An expert must establish that a particular test or
theory—no matter how well established—has been
properly applied in a particular case. An example of
this dynamic is seen through cases involving the use of
radar guns. Appellate courts have held that the
underlying scientific principles of radar are
indisputable and valid as a matter of law. Nonetheless,
it must still be shown in each case that the technique
applying the scientific principles is valid and that the
technique was properly applied on the occasion in
question. See Perales v. State, 117 S.W.3d 434, 442
(Tex. App.—Corpus Christi 2003, pet. ref’d).
9.
The expert is offering opinions on issues of law
Although Texas Rule of Evidence 704 allows an
expert to state an opinion on a mixed question of law
and fact, it does not permit an expert to state an
opinion or conclusion on a pure question of law
because such a question is exclusively for the court to
decide and is not an ultimate issue to be decided by the
trier of fact. See Dickerson v. Debarbieris, 964
S.W.2d 680, 690 (Tex. App.—Houston [14th Dist.]
1998, no pet.) (holding that expert could not provide
opinion on legality of nonjudicial foreclosure).
6.
The expert is relying on unreliable data
Even if the principles or techniques used by the
expert are ordinarily sound, his opinions can be
excluded if there are deficiencies in the underlying data
on which his opinions are based. See Ford Motor Co.
v. Ledesma, 242 S.W.3d 32, 39 (Tex. 2007) (holding
that “[e]xpert testimony is unreliable if it is based on
unreliable data”); Helena Chemical Co. v. Wilkins, 47
S.W.3d 486, 499 (Tex. 2001) (“If an expert relies upon
unreliable foundational data, any opinion drawn from
that data is likewise unreliable.”)
10. The expert is offering opinions that are not helpful
to the trier of fact—i.e., the opinions are irrelevant
Expert opinions that are not relevant cannot be
considered helpful to a jury. See E.I. du Pont de
Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549,
555 (Tex. 1995). To be relevant, the testimony must
be so “sufficiently tied to the facts of the case that it
will aid the jury in resolving a factual dispute.” Id. at
556. Evidence that has no relationship to any of the
5
Daubert: How to Bolster and Attack Expert Witnesses
Chapter 18
adverse expert may be reluctant to personally attack
your expert. When this is the case, you should exploit
this by having the adverse expert admit that your
expert’s methodology is sound or that your expert is
well respected in his field.
At deposition, determine which of your own
expert’s opinions the adverse expert will endorse. At
trial, always begin your cross-examination of an
adverse expert drawing out opinions which agree with
your expert and your theory of the case. Sometimes,
that is all you need to do and sit down. Another
strategy is to determine whether opposing counsel has
provided the expert with all the relevant discovery.
Sometimes, lawyers forget, or may be sloppy, or may
try to cut costs and corners by failing to give their
experts all the relevant discovery materials or all the
material facts. When this happens, get the expert to
admit that his/her opinions and conclusions are only as
good as the information the conclusions are based on.
Garbage in, garbage out. “So expert, if counsel gave
you bad information, or incomplete information, that
could affect the conclusions you reached?” Then
proceed to disclose to the expert all the evidence
counsel failed to provide the expert, leaving the jury
with the impression that there is a fundamental
problem.
issues in the case is irrelevant and does not satisfy TRE
702’s requirement that the testimony assist the jury.
Id.
11. The expert’s opinions are unduly prejudicial
A court can exclude relevant, admissible expert
testimony on the basis of the balancing test prescribed
by TRE 403, which authorizes exclusion of otherwise
admissible evidence if its probative value is
outweighed by considerations of unfair prejudice,
confusion, or tendency to mislead. See Robinson, 923
S.W.2d at 561 n.2.
12. The expert’s opinions are cumulative or
duplicative
Cumulative testimony may be excluded under
TRE 403. See, e.g., Amis v. State, 910 S.W.2d 511,
516–18 (Tex. App.—Tyler 1995, pet. ref’d) (trial court
did not err in excluding testimony of two experts
proffered by defendant; in both instances, experts
would have simply repeated or summarized evidence
already presented to jury).
13. The expert’s opinions as to causation are
unreliable because the expert has not ruled out
other plausible causes
If there are other plausible causes of the injury or
condition that could be negated, the plaintiff must offer
evidence excluding those causes with reasonable
certainty. See generally E.I. du Pont de Nemours &
Co. v. Robinson, 923 S.W.2d 549, 559 (Tex. 1995)
(finding that the failure of the expert to rule out other
causes of the damage rendered his opinion little more
than speculation); Parker v. Employers Mut. Liab. Ins.
Co., 440 S.W.2d 43, 47 (Tex. 1969) (holding that a
cause becomes “probable” only when “in the absence
of other reasonable causal explanations it becomes
more likely than not that the injury was a result”).
D. At trial, use your closing argument to launch a
final attack against an adverse expert
At trial, your last chance to attack an adverse
expert is during closing argument. As seen in Cooper
Tire & Rubber Co. v. Mendez, some attorneys take a
highly aggressive approach against adverse experts in
their closings:
Cooper Tire also complains of jury argument
in which Plaintiffs’ counsel: (1) claimed
Cooper Tire “bought” testimony from
Deputy Sheriff Ventura Salas; (2) did not
retain a certain tire analyst because that
analyst “was not for sale”; and (3) argued
Cooper’s experts “have decided to take not
the path of righteousness, but the path of the
almighty dollar . . . . They have become the
merchants of doom; the undertakers of
Cooper Tire. They will bury anybody who
stands in their way.”
C. Exploit an adverse expert by using him to
bolster your own expert
An adverse expert can sometimes be your best
expert. For example, Daubert motions often question
methodologies that may have been used in previous
cases by either side’s expert. The adverse expert may
be able to provide you with testimony that supports
your expert’s methodology.
When deposing an
adverse expert, you must be conversant and
knowledgeable about your own expert’s methods so
you can explore whether the adverse expert has ever
endorsed them. If you get the adverse expert to
recognize that he has previously endorsed your
expert’s methods, then you are better able to shield
your expert from a Daubert challenge. Moreover, if
your expert and the adverse expert are professional
colleagues or part of a relatively small field, the
155 S.W.3d 382, 410 (Tex. App.—El Paso 2004), rev'd
on other grounds, 204 S.W.3d 797 (Tex. 2006). In
Mendez, the complained-of argument did not amount
to reversible error because defense counsel failed to
object and the appellate court held that the argument
would have been cured with an objection and
instruction to the jury to disregard. Id. The court did
6
Daubert: How to Bolster and Attack Expert Witnesses
Chapter 18
using a document presenter or other visual aid. Ensure
that the jurors understand they can believe the lay
opinions you presented over the paid, biased opinions
of your opponent’s experts. If you cannot get an
instruction outside the PJC, you can simply reinforce to
the jury that they “are the sole judges of the credibility
of the witnesses and the weight to be given their
testimony,” as is stated in any charge based on the PJC.
note, however, that such statements were “troubling
and warrant[ed] scrutiny on appeal.” Id. at 411.
The goal in your closing should be to attack the
adverse expert effectively, but without overdoing it—
i.e., without providing your opponent with an issue for
appeal. Some jurors may react negatively—perhaps
even angrily—if your attack is too blunt in the closing.
It is dangerous to approach your closing with the
assumption that all jurors are ready to vote in your
favor. If you recognize that not all jurors may be
prepared to vote in your favor, then you should also
recognize that some jurors may have developed a sense
of trust and respect toward the adverse expert just as
other jurors have hopefully done with your own
witnesses. With regard to these jurors, the goal of your
closing is to make them less confident that they have
decided the expert-related issues correctly. For the
jurors who are favoring your case, your goal is to
provide them with arguments they can use during
deliberations to convince the other jurors that they are
right. Your best means of accomplishing these two
goals is by telling the jury your logical basis for why
the expert’s opinions are wrong or suspect. The
combined brains and common sense of all the jurors
will inevitably lead to discussion and suspicion about
the expert’s motivations and/or opposing counsel’s
failure to provide the expert all the relevant
information.
Lastly, you can attack an adverse expert in your
closing by securing helpful jury instructions
beforehand. If your case relies on lay opinion and your
opponent’s case relies on expert opinion, you should
strongly consider inserting an instruction in the charge
that emphasizes a jury’s ability to reject controverted
expert testimony. You will need to look outside the
Texas Pattern Jury Charge (“PJC”) for such an
instruction. The following excerpts from case law can
give you the instruction you desire:
•
•
“[A] jury confronted with conflicting evidence
may choose to believe one witness and disbelieve
others; it may resolve inconsistencies in the
testimony of any witness, or it may accept lay
testimony over that of experts.” Garcia v. Garcia,
No. 04-06-00440, 2007 WL 2116399, at *2 (Tex.
App.—San Antonio July 25, 2007, no pet.) (mem.
op.).
“The trier of fact may believe one witness and
disbelieve another. It may resolve inconsistencies
in the testimony of a witness, and it may accept
lay testimony over that of experts.” Hunter v.
Ford Motor Co., Inc., 305 S.W.3d 202, 206 (Tex.
App.—Waco 2009, no pet.).
If you get such an instruction, highlight and emphasize
the instruction to the jury during your closing, ideally
7