EXPERT WITNESSES THE BASICS 1 LOCATING AND RETAINING YOUR EXPERTS

Transcription

1 EXPERT WITNESSES THE BASICS 1 LOCATING AND RETAINING YOUR EXPERTS Retaining the experts tends to be a secondary or trial preparation afterthought with many attorneys. Early identification and retention is critical. Experts can be located from, among other sources: (1) professional listings, (2) other attorneys, (3) periodicals, (4) articles or texts they have authored, (5) prior testimony in similar cases, (6) reported cases, (7) state and national and international professional associations and list serves, and (8) other experts. The early retention of an expert will allow the attorney to not only analyze the case and facts, but direct discovery to proper channels. The expert can used as a consulting expert until it is necessary to disclose this as an expert for use at trial. The consulting expert can be utilized to identify the key facts that will be essential for this or other expert witness to render favorable opinions. She/he will also be able to assist in preparing to conduct discovery of the opposing party s expert and even fact witnesses in areas such as the necessary qualifications, background facts, necessary underlying date and even authoritative sources. There will of course be exceptions. Sometimes it will be necessary to obtain a detailed understanding of the facts before retaining an expert. The danger is that you will probably not be able to re-depose a witness to obtain facts or information that you late retained expert tells you she/he needs in order to render and support their opinions. Many time additional experts in specialized areas (medical causation, standard of care, cause of death, etc.) will also need to be retained but that will occur later on in the case as one progresses to trial. Finally, the early retention of an expert can assist in mediation preparation and lead to early resolution of the case. Consideration of an early report, developed solely for mediation purposes, is available when an expert is already familiar with the underlying facts and theory of the case. PROFESSIONALISM POINTER: One area of unprofessional conduct that trial judges see on a regular basis stems from experts and their retention, disclosure, use and focus. Attorneys meeting early in the case who can establish discovery schedules including cutoff dates for disclosure and discovery will go a long way to eliminating many issues. If not undertaken 1 Any cases or authorities cited in the outline should be confirmed, before utilizing, as to validity, or continued validity, of the citation and their application to the principle(s)for which they are cited. 1

2 voluntarily by the attorneys, judges may impose such schedules either through case management orders or designating a case as a complex case under Fla. R. Civ. P DISCOVERY OF EXPERT WITNESSES EXPECTED TO TESTIFY Early expert discovery is encouraged and disclosure prior to trial is mandatory. Courts have held that the truth seeking function of the court and the jury is best served by full disclosure. This is especially true of relationships between independent witnesses and parties. Dosdourian v. Carsten, 624 So.2d 241 (Fla. 1993); see also, Government Employees Insurance Co. v. Krawzaak, 675 So.2d 115 (Fla. 1996) A party is entitled to argue to a jury that a witness might be more likely to testify favorably on behalf of the party because of the witness financial incentive to continue the financially advantageous relationship. Flores v. Miami-Dade County, 787 So.2d 955 (Fla. 3 rd DCA 2001) Information about experts regarding the frequency of their testimony, the payments made therefore and who made the payments, the names of the cases in which testimony was given at trial or in deposition and the analysis made in those cases can be discoverable. Allstate Insurance Co. v. Hodges, 855 So.2d 636 (Fla. 2 nd DCA 2003) But not everything is discoverable: To be able to discover some information, the court must make a determination that such information was necessary because of unusual or compelling circumstances. [A]ll background documentation may well not be what was contemplated by the Supreme Court in Elkin, Boecher, or under Fla. R. Civ. P (b)(4). Miller v. Harris, 2 So.3d 1070 (Fla. 2 nd DCA 2009) [When asked to produce all background documentation from which an expert prepared a document..., the appellate court noted... we have serious doubts that the supreme court intended its discussions in Elkins, Boecher, and in rule 1.280(b)(4) to permit such far ranging discovery. Miller at 1073 [Financial and business records need only be produced when a proper showing has been made to the Court.] Disclose at least initial opinions and experts early: The school of thought seems to be to wait until that last minute to disclose the identity of any experts. Consider, at least with some experts just the opposite, disclose early: Disclosing opinions and basis therefore can: Help resolve at an early mediation and show the defendant that the case is real and will get to a jury. Eliminate the risk of being excluded for not timely disclosing 2

3 Interrogatories: Assist with at least some record evidence that will defeat a summary judgment HOW IS DISCOVERY ACCOMPLISHED? Generally initial discovery of retained experts who will testify at trial is accomplished through interrogatories under Fla. R. Civ. P (b) (4) [The rule formalized the holding of Elkins v. Syken, 672 So.2d 517 (Fla. 1996)]. In fact the rule actually provides [d]iscovery... may be obtained only as follows: by interrogatories. (Emphasis supplied) Interrogatories can be used to learn: (1) Identify of each witness (2) The subject matter on which each will testify (3) The substance of the facts and opinions of each (4) A summary of the grounds for each opinion of each expert However, non-parties, such as experts or insurers, who are not named in the litigation, could not be required to respond to interrogatories. Parker v. James, 997 So.2d 1225 (Fla. 2 nd DCA 2008) It is the attorney for the party who responds on behalf of the expert. What about records or documents used by the expert: An expert can not be required to produce non-existent record or to create records that did not already exist. Price v. Hannahs, 954 So.2d 97 (Fla. 2 nd DCA 2007); see also, Fla. R. Civ. P (b)(4) Generally, an expert need only produce those items upon which he/she relied in formulating their opinions. Fields v. Cannady, 456 So.2d 1208 (Fla. 5 th DCA 1984) Depositions of Experts: The taking of a deposition of an expert is controlled in part by a separate rule, Fla. R. Civ. Proc This rule deals primarily with the fees to be charged by the expert, when they are to be paid and defines the term of expert witnesses. However, the rule does specifically provide that the deposition of an expert may be taken at any time before the trial and must be taken... in accordance with the rules for taking depositions.... The rule does allow an expert witness deposition to be used at trial without regard to the distance requirement set forth in 1.330(a)(3). The rule further specifically sets forth that the trial court is charged with setting both the reasonable time within which a payment is to be made to the expert and in determining what is a reasonable fee. 3

4 PRACTICE TIP #1: A retaining attorney can agree to compensate an expert in any amount they wish. The issue arises when determining what opposing counsel will be charged for the discovery deposition of an expert, or at the conclusion of the case, when costs are taxed for either depositions or court appearances. Counsel should attempt to resolve the issue of reasonable compensation for an expert for her/his deposition. If that is not possible, a motion should be filed with the Court and the Court will make the appropriate determination as to (1) the reasonable amount of the hourly charge, (2) the requirement of prepayment, and/or (3) the amount to be charged [minimum non-refundable, full hour charge if go over one minute, etc.]. Depositions may be utilized for discovery per Fla. R. Civ. P [see Fla. R. Civ. P (b)(4)(a)(ii)] Information available via deposition can include: Scope of employment and compensation in this case Her/his general litigation experience including percentage for plaintiff and defendant Prior testimony at trial or deposition given within reasonable time frame The approximate degree of an expert s involvement as an expert witness based on (1) number of hours, (2) percentage of hours or (3) percentage of earned income from serving as an expert. [H]owever the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services. See, Fla. R. Civ. P (b)(4)(A)(iii)(4.) Information about an expert s involvement in litigation discovered from an outside source is not protected. For example, the relationship between a party calling a witness and the expert can be discovered from the party calling the witness. Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla. 1999) [Financial relationship is discoverable from the non-expert party] Where an insurer provides a defense for its insured and is acting as the insured s agent, the insurer s relationship to an expert is discoverable from the insured. Springer v. West, 769 So.2d 1068 (Fla. 5 th DCA 2000) yet, one court has held that an insurer was not required by Boecher to create a list of documents showing the use of or payments to physicians for medical examinations. Allstate v. Pinder, 746 So.2d 1255 (Fla. 5 th DCA 1999) [Boecher does not deal with the burden of producing and the trial court determines the... margins of this kind of discovery...] 4

5 PROFESSIONALISM POINTER: A major issue with experts is the scheduling of an experts deposition. When disclosing the identity of an expert and the subject matter about which the expert will testify, consider also providing information when the expert will be ready with his or her final opinions and provide several available dates for deposition. This will allow depositions to be scheduled on everybody s calendar at time when the expert will be ready to share his or her opinions. Most judges will not be sympathetic to scheduling issues believing that such matters should be able to be worked out by the attorneys without the court becoming involved. Does expert discovery apply to an expert of the plaintiff as well? With regard to the applicability of this type of discovery to plaintiff s Springer noted... a defendant may question a plaintiff about any relationship between his or her attorney and the plaintiff s trial expert. In both cases, the information sought is relevant to the witness bias and will enhance the truth seeking function and fairness of the trial as intended by Boecher. Springer [NOTE: The concurring opinion by Judge Harris (Springer at 1069) and the dissent by Judge Griffin (Springer at1070) are helpful and should be read]; See also, State Farm v. German, 12 So.3d 1286 (Fla. 5 th DCA 2009) [Concurring opinion by Judge Torpy] What about a treating doctor is she/he an expert? Yes, the doctor is an expert, but not for discovery disclosure under rule 1.280(b)(4). At least one district court had held that for discovery purposes under Fla. R. Civ. P (b)(4) a treating doctor is not an expert witness for purpose of disclosure. Clair v. Perry, 2011 WL (Fla. App. 4 Dist. 2011), 36 Fla. L. Weekly D345. But see concurring opinion by Judge Torpy in State Farm v. German, 12 So.2d 1286 (Fla. 5 th DCA 2009) [Suggesting that if Elkins does not apply to treating doctors then the limitations there under also do not apply. Discovery of bias information is still permissible, however, with reasonable limitations to be determined by the trial judge on a case-by-case basis. Under most circumstances, it would seem that the correct balance is the same balance contained in the rule for all other experts because there is no logical distinction between treating physicians and retained experts for purposes of uncovering this type of information. The information is similarly relevant, and the burdens of producing the information are the same for all of these professionals. ] But see Katzman v. Rediron Fabrication Inc., 36 FLW D1747a (8/10/11 4 th DCA) NON-TESTIFYING (RETAINED) EXPERTS Generally experts retained to advise or consult on the case but who will not be testifying are protected from disclosure and discovery absent unusual circumstances. Fla. R. Civ. P (b)(4)(B) Only if... upon a showing of exceptional circumstances under which it is 5

6 impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means must these items be produced. WHAT IS AN EXPERT WITNESS? Fla. R. Civ. P (a) defines an expert witness. Case law has established who is an expert witness and for what purpose they may be utilized. For example an expert orthopedic doctor can also be an expert when testifying about a chiropractor. At least one court has held that a doctoring treating a patient, while an expert witness, is not an expert under Fla. R. Civ. P (b)(4) for purpose of pretrial discovery disclosure. Clair v. Perry, 36 Fla. L. Weekly D345 (Fla. 4 th DCA 2011) [Non-final order as of the date of this outline preparation] An expert is a person who is qualified in a subject matter by knowledge, skill, experience, training, or education, and witness qualified as an expert based on knowledge he obtained from occupation notwithstanding his lack of licensure or professional training. Vega v. State Farm, 45 So.3d 43 (Fla. 5 th DCA 2010) Further some statutes make specific provisions as to what constitutes an expert witness for purposes of this particular cause of action. See for example, Fla. Stat LIMITATION ON EXPERTS Number of Experts that may be called to testify: The number of expert witnesses that may be called by a party is within the discretion of the trial court. Philippon v. Shreffler, 33 So.3d 704 (Fla. 4 th DCA 2010); Elder v. Farulla, 768 So.2d 1152, 1155 (Fla. 2 nd DCA 2000) Subject Matter of Testimony and Opinions: The ranges of subjects about which an expert witness will be allowed to testify are with the trial judge s broad discretion. Philippon; Roseman v. Town Square Ass n, 810 So.2d 516, 522 (Fla. 4 th DCA 2001) If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert may testify about it in the form of an opinion;. Fla. Stat Experts may not render an opinion that applies a legal standard to a set of facts. Murray v. Delta Health Group, Inc. 30 So.3d 576 (Fla. 2 nd DCA 2010) An expert may not testify regarding legal conclusions that the jury should be free to reach independently. For example, an expert can testify that defendant did not breach the standard of care, but may NOT testify that the nursing home was not negligent. 6

7 PRACTICE TIP # 2: Remember, F.S teaches that if it will assist the trier of fact to understand the evidence or determine a fact an expert should be allowed. This can be in part established during voir dire in your questioning of jurors. For example, Ms. Jones, you expressed some concern about being able to understand the way a business accounting works. Would it be of assistance to you if an accountant were to come in and explain that to you? What about the objection that the cost of answering the interrogatory is an undue hardship? Cost of answering interrogatories would not rise to the level of an undue burden. Hodges at 640. What if information on an expert is not disclosed? Trial courts may, and should, exclude expert testimony that has not been previously disclosed especially when required to do so by pre-trial order of the court. Citing to Binger v. King Pest Control, 401 So.2d 1310, (Fla. 1981) the court noted that the rules of discovery are intended to avoid surprise and trial by ambush. Further, Binger emphasized that the... search for truth and justice can be accomplished only when all relevant facts are before the judicial tribunal. Relevant facts, not gamesmanship, are the determining factors to consider. Binger at See also, Agropollajes, S.A. v. E.I. Du Pont De Nemours & Company, Inc., 48 So.3 rd 976 (Fla. 3 rd DCA 2010) [After rehearing], Tetrault v. Fairchild, 799 So.2d 226 (Fla. 5 th DCA 2001) [Expert witness was not allowed to testify when opposing counsel was given no pretrial notice that this treating radiologist, who saw patient in ER, would be asked to testify as an expert on causation.] PRIOR TO PRE-TRIAL CONFERENCE OR AS REQUIRED BY CMC ORDER Disclose in writing both the opinions of your experts and the basis therefore Disclose exhibits and demonstrative aids that will be used by the expert For Direct Examination: 1- Confirm that did so and that there was no objection have initialed 2- Disclose power points if one is to be used 3- Enlargement of exhibits is best and generally not objectionable PREPARING YOUR WITNESS FOR TRIAL Use exhibits that will be used and admitted Use diagrams and drawings 7

8 For Cross of your expert: Get your witness up and in front of jury teaching Use actual exhibits that will be in the jury room with the jury Put multiple exhibits together to show how they interrelate Listing, teaching and explaining terms Get opinions out early for benefit of court & jury Do not assume your expert witness knows how to properly respond Get him/her to concede when he should do so Get him/her to respond to question don t be evasive Restate her/his expert opinion when the opportunity presents PRACTICE TIP #3: Rarely will an expert be effective if the witness argues with the cross examining attorney. It appears to be a better practice to attempt to answer the question, or state that they can not as phrased, and then explain if he/she needs to do so. Always remember that with your expert you will have an opportunity to have her/him elaborate on redirect. Also, remember the jurors will have a right to direct questions to your expert and most certainly do so if the expert did not directly answer a question. Redirect Examination: Prepare to summarize Prepare to explain areas in which you have a concern Use or reuse exhibits Repeat key legal terms or phrases if helpful ( Reasonable degree of probability, permanent injury, medical bills certain to occur, would not have occurred but for, aggravation, more probable than not) PRACTICE TIP #4: Keep an eye on the jury and listen to their questions, even the ones that were written but then crossed out and therefore not asked. These observations will direct you to what they think are important or unclear to them. The jurors will have heard early instructions so may have been looking for certain key terms or phrases (permanent injury, certainty, probability, prevailing professional standard of care, etc.) 8

9 PRESENTING YOUR EXPERT WITNESS In preparation: Visit the courtroom with him/her before the trial Outline in your notes what you must cover with the expert Prepare to ask the very basic qualifications to enable him/her to testify Make sure they are familiar with exhibits, aids, pointers, overhead, shadow boxes Presentation of the Expert: Get his opinions out early Jury will be able to understand why presented Judge will be listening regarding DV criteria Jurors seem to take notes better when outline is given to them PRACTICE TIP #5: While there is no correct way to qualify an expert, jurors get bored with long winded, detailed qualification questioning. One suggestion is to provide a basic qualification of the expert initially. Then get the opinions out and then, when discussing each opinion, relate further qualification to that opinion. For example, if your expert is a medical doctor, board certified, and licensed in Florida get that out initially. Then when discussing his opinion regarding the shoulder injury go into the further detail that he did a fellowship in shoulder surgery and what that means, that he has published article on this type of injury, etc. PRACTICE TIP #6: Consider listing the opinions on a chart as they are given so the jury can follow along. These should be related or ordered so they will follow along with what the jury will be instructed when they receive the final jury instructions. While no longer required by the rules of evidence as a precursor to the opinion, the best practice is to have the expert explain how he arrived at the opinion and upon what he relied or, where appropriate, did not rely upon., Keep your direct as short and focused as possible Consider using a hypothetical question it is a good synopsis of opinion Get the expert out of the witness stand and up in front of the jury teaching. 9

10 PRACTICE TIP #7: Many experts are comfortable teaching and getting them in front of the jury allows them to perform and holds them out as a true expert. However, be cautious. Some experts, while sounding good on paper or in deposition, are truly awful in front of a jury. Check with other attorneys who have used the expert and can give you some insight. Also, check with the judge as to what she/he will allow with regard to experts. Will the judge allow the expert to get out of the stand and testify in front of the jury? Will the judge allow the expert to use demonstrative aids? To draw a diagram? Try and have the witness use the actual exhibits that are in evidence or that will be admitted into evidence. PRACTICE TIP #8: It is always a good idea to either have your expert s testimony on a DVD or at least in a readable format in the discovery deposition. One of a trial lawyer s worst fears is the learning in the middle of trial that you live expert testimony is not going to be able to make it to trial! If you can not preserve his/her testimony on video/dvd, at least ask enough on cross in the discovery deposition so it can be read or played to the jury if your expert can not make it to trial. CROSS EXAMINATION OF AN EXPERT WITNESS The art of cross examination is stepped in preparation. The subject is one that lends itself to a separate seminar which could fill several days. Some basic tenants are covered here however. Generally it is best to cross an expert only if something can be accomplished. The scope, topics and even manner of cross is determined via the discovery deposition and ones conversations with their retained consulting expert. The examination must be for a specific purpose with an attainable end result sought. Are you trying to get favorable admissions, or discredit the witness? Is your purpose to show flaws in the foundation or that different interpretation can occur from the same information? Some areas upon which an examiner may focus include: 1- Timing of the opinion 2- Scope of the opinion 3- Basis for the opinion 4- Available data at the time the opinion was formulated 5- Contrary opinions stated (impeachment) or contrary to accepted opinions (authoritative sources). 6- Relationship with retaining party 10

11 PRACTICE TIP #9: How do you handle presenting a doctor who is hired a lot by insurance companies without disclosing that insurance exists? In a specially concurring opinion by Judge Harris in Springer, he suggests a way to inquire of the expert as to the number of times he has been hired by the attorneys and the insurance carrier without revealing insurance coverage. The suggestion Judge Harris makes is: Doctor, how often have you appeared for those representing the defense in this case and what percentage of your income has come from them. Springer at Judge Griffin appears to suggest a subpoena directed to the insurer, however, is the better approach. PROFESSIONALISM POINTER: Presentation of expert witnesses can be a scheduling nightmare. Because of their cost and limited availability, it is difficult to call experts when you need them in your case in chief. Most attorneys will readily agree to take experts out of turn and even during the other sides case to accommodate everybody s schedule. Sometimes it will be necessary to have an expert finish his or her testimony the day they go on the stand so they may return to their offices. Accordingly, it may be necessary to arrange with the Court, opposing counsel and even the jury (through the judge) to either start the trial day early, work through lunch or a little late into the evening to finish that expert s testimony. Arrangements for these alternative presentations should be addressed to the Court and opposing counsel as early as possible to facilitate the schedule modifications. Accommodating each other in scheduling the presentation of witnesses is an attorney s responsibility and not the clients. Professionalism demands that all attorneys work together to assist in this endeavor. Some basic cautions: Ask only leading questions Ask only questions to which you know and can substantiate the answer. Do not restate the expert s opinions Use short questions and short sentences Use plain English Be polite Judge John Marshall Kest, Revised June Copyright 2 Comments, recommendations, "practice tips," and "professionalism pointers" are solely those of Judge John Kest. When appearing in front of a specific judge, each attorney should check with that judge for the individual procedures, policies and requirements of that judicial division or judge. 11