2013 Annual Convention. Expert Witnesses

Transcription

1 2013 Annual Convention Expert Witnesses Litigation Section 3.0 CLE Hours May 8-10, 2013 Cleveland

2 CONTRIBUTORS Damian A. Billak Attorney at Law Canfield, Ohio Mr. Billak received his JD from Cleveland State University Cleveland-Marshall College of Law. His professional memberships include the National Association of Criminal Defense Lawyers (Life Member), Ohio Association of Criminal Defense Lawyers, Ohio State Bar Association, Mahoning County Bar Association, and National Organization for Marijuana Control. Mr. Billak practices in the area of criminal defense, including drug offenses, OVI defense, and traffic ticket defense. For additional information, please visit David C. Calderhead Calderhead Lockemeyer & Peschke Milford, Ohio Mr. Calderhead received his BA from Taylor University and his JD from Cleveland State University Cleveland-Marshall College of Law. His professional memberships include the Ohio State Bar Association, Cincinnati Bar Association, Clermont County Bar Association, Kentucky Bar Association, Defense Research Institute, Ohio Association of Civil Trial Attorneys, and Order of Barristers. Mr. Calderhead is the managing member and senior attorney at his firm. He practices in the areas of professional liability, appellate practice, civil litigation, medical malpractice defense, insurance defense, health care, and consumer law. In his 24 years as an attorney, Mr. Calderhead has tried over 70 cases, with over 60 of the trials being medical malpractice cases. His appellate work has included successfully arguing cases in the Supreme Court of Ohio and various courts of appeals in Ohio. For additional information, please visit Stephen S. Crandall Crandall, Moses, Pera & Wilt Chagrin Falls, Ohio Mr. Crandall is a member of various local, state and national bar associations. He is a highly rated Ohio and Kentucky attorney who limits his practice to cases involving medical negligence/malpractice, birth injuries, cerebral palsy, and commercial trucking accidents. As a defense lawyer, Mr. Crandall tried over 100 cases to verdict throughout Ohio and on behalf of many insurance companies and hospitals. He is a frequent lecturer throughout the country to various legal and medical organizations, risk management groups, and the insurance industry. Mr. Crandall also was a guest lecturer regarding Medical Malpractice Trial Tactics for the Cleveland State University Cleveland-Marshall School of Law in For additional information, please visit Matthew D. Gurbach Benesch Friedlander Coplan & Aronoff LLP Cleveland, Ohio Mr. Gurbach received his AB from Youngstown State University and his JD from Case Western Reserve University School of Law. His professional memberships include the Federal Bar Association (Board of Directors, Northern District of Ohio Chapter) and Ohio State Bar Association (Litigation Section Council). Mr. Gurbach is a partner with his firm s litigation practice group. He has experience litigating business, commercial, and other complex matters. Mr. Gurbach has successfully represented clients as first-chair trial counsel in courtrooms throughout the State of Ohio. He has also appeared as lead counsel in numerous Ohio appellate courts. Mr. Gurbach also has experience arbitrating matters before the American Arbitration Association and litigating issues involving covenants not to compete, trade secrets, breach of contract matters, employment discrimination, consumer sales practice claims, insurance coverage, catastrophic injury, leases, warranties, and complex construction matters. In 2008, he was regional counsel for the Ohio Democratic Party s voter protection initiative, training hundreds of lawyers and other volunteers who

3 served as Election Day poll observers. Mr. Gurbach is a 2004 graduate of the International Association of Defense Counsel s Trial Academy in Stanford, California. For additional information, please visit Jared R. Henthorn Scientific Expert Analysis Columbus, Ohio Mr. Henthorn received his BS from Ohio University. His professional memberships include the American Industrial Hygiene Association, American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc., American Conference of Governmental Industrial Hygienists, American Society of Safety Engineers, Indoor Air Quality Association, Inc., and American Society for Testing and Materials. Mr. Henthorn is responsible for providing industrial hygiene sampling and forensic analysis involving workplace air quality, workplace safety, mold and mildew contamination, and sick building syndrome. His expertise includes investigation of indoor air quality with regard to chemical and biological stressors, such as mold and mildew, asbestos, organic vapors, and other environmental contaminants. Prior to joining SEA, Mr. Henthorn was employed by the Sara Lee Corporation, as the safety and environmental manager, where he was responsible for the implementation and maintenance of all facets of industrial hygiene, safety, ergonomics, workers compensation, and the environmental policies and programs that ensured compliance with local, state, and federal regulations. He is a Certified Safety Manager, Certified Indoor Air Quality Professional, and a Certified Mold Remediator. Mr. Henthorn has provided deposition and expert trial testimony within the State of Florida regarding mold and mildew and industrial hygiene evaluations. For additional information, please visit James R. Jeffery Spengler Nathanson PLL Toledo, Ohio Mr. Jeffery received his BA from The Ohio State University and his JD from The University of Toledo College of Law. His professional memberships include the Ohio State Bar Association, Toledo Bar Association, and American Inns of Court Morrison R. Waite Chapter (Master of the Bench). Mr. Jeffery has represented a variety of clients in a broad range of subject matters. He has extensive litigation experience in state and federal trial and appellate courts, including governmental agencies, tribunals, arbitration, and mediation panels. Specifically, subject matters have been concentrated in commercial, construction, professional negligence, and personal injury litigation. For additional information, please visit R. Mark Jones Roetzel & Andress Cleveland, Ohio Mr. Jones received his BA from the University of Colorado at Boulder and his JD from Case Western Reserve University School of Law. His professional memberships include the Cleveland Metropolitan Bar Association, Defense Research Institute, and Ohio State Bar Association. Mr. Jones practices in both medical malpractice defense and civil litigation, focusing on representing hospitals and physicians in a variety of medical defense matters. He has handled more than 90 civil jury trials to verdict. Mr. Jones is the author of Medicare Fraud Civil and Criminal Penalty: Pitfalls and Protections from The Academy of Medicine of Cleveland and Northern Ohio s Northern Ohio Physician (2012) and is a frequent lecturer on topics related to his areas of practice. For additional information, please visit com. Honorable Richard M. Markus Private Judicial Services, Inc. Fairview Park, Ohio Judge Markus received his BS from Northwestern University and his JD from Harvard Law School. His professional memberships include the Association of Trial Lawyers of America (Honorary Life Member), Ohio State Bar Association; Ohio Association of Justice, Academy of

4 Florida Trial Lawyers (Honorary Life Member), American Bar Association, Lawyer-Pilot Bar Association (Instrument Rated Private Pilot), American Board of Professional Liability Attorneys (Founding Trustee), American Inns of Court (Founder and Master Bencher for Celebrezze Inn, Cleveland Master Bencher for Thomas Inn and Employment Law Inn), Cleveland Metropolitan Bar Association (Trustee), and Roscoe Pound Foundation (Life Member). Judge Markus is a retired Ohio common pleas and court of appeals judge, recalled to service, and now serving as visiting judge in 38 Ohio counties. He provides alternative dispute resolution services, including non-evaluative mediation, evaluative mediation, binding arbitration, and private judging. Judge Markus is the recipient of numerous awards including the Ohio State Bar Foundation Distinguished Governmental Leadership Award (1985) and the Ohio Association of Civil Trial Attorneys Award of Honor (1990). He is a frequent author and lecturer on topics related to his areas of practice. For additional information, please visit Deborah J. Michelson Miller Goler Faeges Lapine LLP Cleveland, Ohio Ms. Michelson received her BA from Northwestern University and her JD from Case Western Reserve University School of Law. Her professional memberships include the Cleveland Metropolitan Bar Association (Commercial Courts Subcommittee; Litigation Section; Women-in-Law Section), Ohio State Bar Association (Litigation Section Council); Ohio Women s Bar Association, American Bar Association (Litigation Section), and William K. Thomas Inn of Court. Ms. Michelson is a trial and appellate lawyer in a business boutique firm representing clients throughout Ohio and nationwide in a broad range of commercial disputes, including business torts, intellectual property rights, securities fraud, employment discrimination, contract claims, commercial real estate, business break-ups and wind-downs, fiduciary litigation, insurance coverage, probate matters, corporate governance, and ERISA-related issues. She serves a diverse clientele in industries that include publicly traded companies as well as mid-size and small operations. Ms. Michelson often works with experts in the physical and social sciences, human resources, specific industry practices, and computer forensics. For additional information, please visit Philip M. Oliss Squire Sanders (US) LLP Cleveland, Ohio Mr. Oliss received his BA from The Ohio State University and his JD from the University of Cincinnati College of Law. His professional memberships include the Cleveland Bar Association, Defense Research Institute, American Bankruptcy Institute, and Cleveland Law Library Association (Board of Directors). Mr. Oliss chairs the litigation practice group at his firm and has first chair trial experience in state and federal courts, including bankruptcy courts. He also has argued cases in state and federal appellate courts. Mr. Oliss s practice is focused on complex litigation and business restructuring-related litigation. He has successfully defended Fortune 500 clients in cases involving allegations of consumer fraud and product defects, including multistate class action litigation. Mr. Oliss also has successfully defended class action litigation involving challenges to insurers claims handling and other practices, and has represented plaintiffs and defendants in cases involving RICO, antitrust, and securities fraud. He is a frequent author and lecturer on a variety of subjects, including class actions, bankruptcy litigation strategies, professionalism and ethics, and developments in corporate directors and officers liability. For additional information, please visit Stacie L. Roth Schulman Zimmerman & Associates Canton, Ohio Ms. Roth s professional memberships include the Ohio Association of Justice and the Stark County Association for Justice. In July 2003, she was one of only 50 lawyers nationwide to be accepted to the Trial Lawyers College in Jackson Hole, Wyoming. Ms. Roth devotes the

5 majority of her practice to protecting the rights of injured children; victims of sexual abuse and harassment; and those injured, maimed, or killed in motor vehicle crashes. She successfully challenged a public school system after the school turned its back on a teenage girl and, instead, protected the teacher who sexually molested her. Ms. Roth has represented children left with devastating and permanent injuries after their doctors failed to diagnose life-threatening conditions. For additional information, please visit Pamela S. Schremp Mentor, Ohio Ms. Schremp received her MB from Johnson School of Nursing, her BN from Bowling Green State University, her MSN from University of Cincinnati, and her JD from Cleveland State University Cleveland-Marshall College of Law. Her professional memberships include the Ohio State Bar Association, Ohio Association of Civil Trial Attorneys, Cleveland Association of Trial Attorneys, and Defense Research Institute. Ms. Schremp practices in the areas of medical malpractice, professional liability, and general negligence. John F. Stock Benesch Friedlander Coplan & Aronoff LLP Columbus, Ohio Mr. Stock received his BA from The Ohio State University and his JD from The Ohio State University Michael E. Moritz College of Law. His professional memberships include the American Bar Association and Ohio State Bar Association. Mr. Stock s practice is comprised primarily of business litigation. His litigation practice includes disputes pertaining to consumer sales practices, labor and employment, intellectual property, software licensing, land use regulation, public contract matters, environmental law, trade secrets, and ERISA/fiduciary liability. Mr. Stock has specific experience with the defense of consumer class actions, grievance arbitrations, unfair labor practice disputes, employment discrimination defense, and trade secret litigation. He has extensive experience representing counties and municipalities in litigation concerning government projects and public improvements. For additional information, please visit Robert J. Triozzi Calfee Halter & Griswold LLP Cleveland, Ohio Mr. Triozzi received his BA from Cornell University and his JD from Case Western Reserve University School of Law. He is senior counsel with his firm. With his years of experience and unique perspective working inside the public sector, Mr. Triozzi provides skilled and strategic advice for clients interacting with government at all levels: local, county, regional, state, and federal. He has a keen understanding of how government works, and he has extensive experience in a multitude of areas, including legislation, development opportunities, public contracts, internal investigations, labor relations, conflict resolution, and public policy. For additional information, please visit

6 Expert Witnesses Session # 301 Expert Witnesses David C. Calderhead, Honorable Richard M. Markus, Damian A. Billak, Deborah J. Michelson, John F. Stock, Matthew D. Gurbach, Stacie L. Roth, R. Mark Jones, Steven S. Crandall, Philip M. Oliss, Jared R. Henthorn, CSM, James R. Jeffery, and Pamela S. Schremp Local Rules... 1 Cuyahoga County Local Rule Franklin County Local Rule Scope of Disclosure Exclusion of Testimony... 2 Hamilton County Local R. 15(B)(2)... 2 Mahoning County Local Rule 3(A)... 3 Montgomery County Local Rule 2.01, Judicial Step 1(A)(3)(B)... 3 Ohio Criminal Rule 16(K)... 4 FRCP 26(A)(2)... 4 Ohio Civil Rule 26(B)(5)... 5 Ohio Rule 702. Testimony by Experts... 6 Fed. Crim. R. 16(A)(1)(G)... 6 Fed. Evid. Rule 702. Testimony by Expert Witnesses... 7 Fed. Evid. Rule 703. Bases of an Expert s Opinion Testimony... 7 Fed Evid. Rule 704. Opinion on an Ultimate Issue... 7 Fed. Evid. Rule 705. Disclosing the Facts or Data Underlying an Expert s Opinion... 7 Fed. Evid. Rule 803. Exceptions to the Rule Against Hearsay Regardless of Whether the Declarant Is Available as a Witness... 8 PowerPoint Presentation... 9

7 Expert Witnesses David C. Calderhead Calderhead Lockemeyer & Peschke Milford, Ohio Honorable Richard M. Markus Private Judicial Services, Inc. Fairview Park, Ohio Damian A. Billak Attorney at Law Canfield, Ohio Deborah J. Michelson Miller Goler Faeges Lapine LLP Cleveland, Ohio John F. Stock Benesch Freidlander Coplan & Aronoff LLP Columbus, Ohio Matthew D. Gurbach Benesch Freidlander Coplan & Aronoff LLP Cleveland, Ohio Stacie L. Roth Schulman Zimmerman & Associates Canton, Ohio R. Mark Jones Roetzel & Andress Columbus, Ohio Steven S. Crandall Crandall, Moses, Pera & Wilt Chagrin Falls, Ohio Philip M. Oliss Squire Sanders (US) LLP Cleveland, Ohio Jared R. Henthorn, CSM Scientific Expert Analysis Columbus, Ohio James R. Jeffery Spengler Nathanson PLL Toledo, Ohio Pamela S. Schremp Mentor, Ohio

8 LOCAL RULES CUYAHOGA COUNTY LOCAL RULE 21.1 PART I: Expert Witness (A) Since Ohio Civil Rule 16 authorizes the Court to require counsel to exchange the reports of medical and expert witnesses expected to be called by each party, each counsel shall exchange with all other counsel written reports of medical and non-party expert witnesses expected to testify in advance of the trial. The parties shall submit expert reports in accord with the time schedule established at the Case Management Conference. The party with the burden of proof as to a particular issue shall be required to first submit expert reports as to that issue. Thereafter, the responding party shall submit opposing expert reports within the schedule established at the Case Management Conference. Upon good cause shown, the Court may grant the parties additional time within which to submit expert reports. (B) A party may not call a non-party expert witness to testify unless a written report has been procured from the witness and provided to opposing counsel. It is counsel s responsibility to take reasonable measures, including the procurement of supplemental reports, to insure that each report adequately sets forth the non-party expert s opinion. However, unless good cause is shown, all supplemental reports must be supplied no later than thirty (30) days prior to trial. The report of a non-party expert must reflect his opinions as to each issue on which the expert will testify. A non-party expert will not be permitted to testify or provide opinions on issues not raised in his report. (C) All non-party experts must submit reports. If a party is unable to obtain a written report from a non-party expert, counsel for the party must demonstrate that a good faith effort was made to obtain the report and must advise the Court and opposing counsel of the name and address of the expert the subject of the expert s expertise together with his qualifications and a detailed summary of his testimony. In the event the non-party expert witness is a treating physician, the Court shall have the discretion to determine whether the hospital and or office records of that physician s treatment which have been produced satisfy the requirements of a written report. The Court shall have the power to exclude testimony of the expert if good cause is not demonstrated. (D) If the Court finds that good cause exists for the non-production of a nonparty expert s report, the Court shall assess costs of the discovery deposition of the non-complying expert against the party offering the testimony of the expert unless, by motion, the Court determines such payment would result in manifest injustice. These costs may include the expert s fee, the Court reporter s charges and travel costs. (E) If the Court finds that good cause exists for the non-production of a report from a non-party treating physician, the Court shall assess costs of the discovery deposition of the physician equally between the plaintiff and the party or parties seeking discovery of the expert. These costs may include the physician s fee, the Court reporter s charges and travel costs. Expert Witnesses 1

9 (F) A party may take a discovery deposition of their opponent s non-party medical or expert witness only after the mutual exchange of reports has occurred. Upon good cause shown, additional time after submission of both sides expert reports will be provided for these discovery depositions if requested by a party. If a party chooses not to hire an expert in opposition to an issue, that party will be permitted to take the discovery deposition of the proponent s expert. Except upon good cause shown, the taking of a discovery deposition of the proponent s non-party expert prior to the opponent s submission of an expert report constitutes a waiver of the right on the part of the opponent to call an expert at trial on the issues raised in the proponent s expert s report. FRANKLIN COUNTY LOCAL RULE 43 Each party shall, not later than the date for disclosure designated in the Case Schedule, serve on all parties and file with the court a written disclosure of all persons with relevant factual or expert knowledge whom the party reserves the option to call as witnesses at trial Scope of Disclosure Disclosure of witnesses under this rule shall include the following information: (a) All witnesses. Name, addresses, and business phone number (or home phone number, if no business number is available). * * * * (c) Experts. A brief description of the expert s qualifications and summary of the expert s opinions and the basis or theory of that opinion Exclusion of Testimony Any witnesses not disclosed in compliance with this rule may not be called to testify at trial, unless the Trial Judge orders otherwise for good cause and subject to such conditions as justice requires. HAMILTON COUNTY LOCAL R. 15(B)(2) (2) All trial attorneys shall file with the judge to whom the cause is assigned and serve upon all other trial attorneys appearing in the action, not less than two days prior to date of the pretrial conference, a Pretrial Statement: f) Attaching copies of available opinions of all persons who may be called as expert witnesses, including physicians, which shall not constitute a waiver of privilege granted under Revised Code Section , as set forth in Civil Rule 16; 2 Expert Witnesses

10 MAHONING COUNTY LOCAL RULE 3(A) (A) Expert Witnesses (1) An expert witness is any person qualified as such pursuant to Ohio Evidence Rule 702. (2) At the status hearing the Court shall establish a schedule for the identification of expert witnesses. The identification shall include the name, professional address, office telephone number and curriculum vitae of each such witness. The Plaintiff(s) shall be required to identify their expert witnesses first, and sixty days thereafter the Defendant(s) shall be required to identify their expert witnesses, unless otherwise ordered by the Court. (3) A party shall, at the time expert witnesses are identified, submit to all other parties a written report from each identified expert witness. The report must fairly and accurately set forth the expert s opinion on each and every material issue upon which the witness will testify. An expert witness will not be permitted to testify or provide opinions on any material issue not addressed in his/her report. (4) If a party is unable to procure a written report from an expert witness, counsel for the party must demon-strate that a good faith effort was made to obtain the report and must advise the Court and counsel for all other parties the name, professional address and office telephone number of such witness, the subject of the witness expertise together with his/her qualifications and a detailed summary of the anticipated testimony. In the event the witness is a treating physician, the Court shall have the discretion to determine whether hospital and/or office records of that physician s treatment that have been produced satisfy the require-ments of a written report. (5) A party may take a discovery deposition of its opponent s medical or expert witness only after the mutual exchange of reports has occurred. Upon good cause shown, additional time may be provided after sub-mission of both sides expert reports for the discovery depositions. If a party chooses not to hire an expert in opposition to an issue, that party will be permitted to take the discovery deposition of the proponent s expert. Except upon good cause shown, the taking of a discovery deposition of the proponent s expert prior to the opponent s submission of an expert report constitutes a waiver of the right on the part of the opponent to call an expert at trial on the issues raised in the proponent s expert s report. MONTGOMERY COUNTY LOCAL RULE 2.01, JUDICIAL STEP 1(A)(3)(B) (1) Disclosure of Experts: (a) Each party shall reveal to opposing counsel the name and address of any expert witness expected to be called at trial no later than the established deadline date in the pretrial order. Expert Witnesses 3

11 4 Expert Witnesses OHIO CRIMINAL RULE 16(K) (K) Expert Witnesses; Reports. An expert witness for either side shall prepare a written report summarizing the expert witness s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert s qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert s testimony at trial. (2) Disclosure of Expert Testimony. FRCP 26(A)(2) (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party s employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure 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.

12 (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made: or (i) at least 90 days before the date set for trial or for the case to be ready for trial; (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (iii), within 30 days after the other party s disclosure. (E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e). (5) Trial preparation: experts. OHIO CIVIL RULE 26(B)(5) (a) Subject to the provisions of division (B)(5)(b) of this rule and Civ.R. 35(B), a party may discover facts known or opinions held by an expert retained or specially employed by another party in anticipation of litigation or preparation for trial only upon a showing that the party seeking discovery is unable without undue hardship to obtain facts and opinions on the same subject by other means or upon a showing of other exceptional circumstances indicating that denial of discovery would cause manifest injustice. (b) As an alternative or in addition to obtaining discovery under division (B)(5)(a) of this rule, a party by means of interrogatories may require any other party (i) to identify each person whom the other party expects to call as an expert witness at trial, and (ii) to state the subject matter on which the expert is expected to testify. Thereafter, any party may discover from the expert or the other party facts known or opinions held by the expert which are relevant to the stated subject matter. Discovery of the expert s opinions and the grounds therefor is restricted to those previously given to the other party or those to be given on direct examination at trial. (c) Drafts of any report provided by any expert, regardless of the form in which the draft is recorded, are protected by division (B)(3) of this rule. (d) Communications between a party s attorney and any witness identified as an expert witness under division (B)(5)(b) of this rule regardless of the form of the communications, are protected by division (B)(3) of this rule except to the extent that the communications: Expert Witnesses 5

13 (i) relate to compensation for the expert s study or testimony; (ii) identify facts or data that the party s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party s attorney provided and that the expert relied on in forming the opinions to be expressed. (e) The court may require that the party seeking discovery under division (B)(5)(b) of this rule pay the expert a reasonable fee for time spent in responding to discovery, and, with respect to discovery permitted under division (B)(5)(a) of this rule, may require a party to pay another party a fair portion of the fees and expenses incurred by the latter party in obtaining facts and opinions from the expert. OHIO RULE 702. TESTIMONY BY EXPERTS A witness may testify as an expert if all of the following apply: (A) The witness testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; (C) The witness testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply: (1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles; (2) The design of the procedure, test, or experiment reliably implements the theory; (3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result. 6 Expert Witnesses FED. CRIM. R. 16(A)(1)(G) (G) Expert Witnesses. At the defendant s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-inchief at trial. If the government requests discovery under subdivision (b)(1)(c)(ii) and the defendant complies, the government must, at the defendant s request, give

14 to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant s mental condition. The summary provided under this subparagraph must describe the witness s opinions, the bases and reasons for those opinions, and the witness s qualifications. FED. EVID. RULE 702. TESTIMONY BY EXPERT WITNESSES 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: (a) the expert s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. FED. EVID. RULE 703. BASES OF AN EXPERT S OPINION TESTIMONY An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. FED EVID. RULE 704. OPINION ON AN ULTIMATE ISSUE (a) In general not automatically objectionable. An opinion is not objectionable just because it embraces an ultimate issue. (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. FED. EVID. RULE 705. DISCLOSING THE FACTS OR DATA UNDERLYING AN EXPERT S OPINION Unless the court orders otherwise, an expert may state an opinion- and give the reasons for it-without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination. Expert Witnesses 7

15 FED. EVID. RULE 803. EXCEPTIONS TO THE RULE AGAINST HEARSAY REGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if: (A) the statement is called to the attention of an expert witness on crossexamination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert s admission or testimony, by another expert s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit. 8 Expert Witnesses

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