The good, bad & ugly of using UD law school april 2008

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The Good, Bad & Ugly of Using Expert Witnesses

Presented to University of Dayton School of Law - April 9, 2008

Ron Thaman, MS, CSP

UD Alumni ‘68, ‘71 & ‘73


Overview of Expert Witness Retention

• Finding the right, qualified expert for your litigation.

• Does the potential expert have the correct people skills do get the job done correctly?

• Can the potential expert withstand any Daubert objections?

• Is the potential expert too busy to do your litigation?


Overview of Expert Witness Retention (cont’d)

• Can the expert(s) that you retain work together?

• Can your case afford the Cadillac or will the Chevrolet model do?

• Has the potential expert not withstood a Daubert challenge?

• Do you like the personality of the one chosen?


How Does an Attorney Find the Right

Man or Woman for Their Case?• Email other associates.

• Start an expert witness file that will be used through-out your career.

• Interview several potential experts for your case.

• Check with other attorneys who have used the potential expert.


What Skills Should the Potential Expert Witness Possess to Ensure that You and Your Client Look Well Represented?

• Ability to communicate complicated engineering or scientific principles to a jury.

• Honesty and integrity! (Don’t sugarcoat bad news.) Don’t want a non-suit!

• Good onsite skills: interviewing, photography, ability to get to the bottom of things.

• Proper educational background for the project.

• Correct certifications and licenses for the project – extremely important!


Daubert Challenges

• Today’s litigator will always look into the background and qualifications of an opposing expert.

• Can your expert withstand a Daubert challenge?


Daubert or Frye Challenges

• The Frye rule (Frye v. United States, 293 F 1013 D.C. Cir, 1923) asks, as its two primary concerns, whether the findings presented by experts are generally accepted within the field to which they belong, and whether they are beyond the general knowledge of the jurors.


Examples of Daubert Challenges

Prerequisites:

• Can the theory or technique be tested?

• Has it been subject to peer review?

• Is there a known rate of error?

• Is there a level of acceptance in community?


Daubert Challenge on Auger Electron Spectroscopy (AES)

• Process called ThaMac that SEA has a patent for in fire investigation. The process works on beads of wires (in some cases).

• Opposing expert, a Ph.D. Materials Engineer developed his own modified AES test and his own interpretation.

• My attorney put up Daubert challenge against the engineer; likewise, other attorney put up a challenge to my testimony.


Daubert Challenge on Auger Electron Spectroscopy (AES)

• The judge had just attended a Daubert seminar and was ready to run his first such challenge. Both attorneys and experts present in courtroom. Both experts testified before the judge.

• I was accepted.

• Engineer was asked question by judge, “Where could I get this test performed other than at your lab?” Engineer fumbled around the question and could not give concrete answer.

• The engineer was not allowed to testify and I was allowed. The case settled in our favor, since the other side had no expert.

• The attorney for the other side asked the judge to reverse his order, since it would destroy the experts credibility. Judge reversed the order, but expert has never testified since.


Does the Potential Expert have Litigation Experience That Will Help YOU do the Right Thing?

• An experienced expert can assist a young attorney just because they have been through it before.

• Spoliation issues.

• Questions for interrogatories.

• Cross examination questions for opposing experts.

• Help in getting the right discovery documents the first time.


Is Your Expert too Busy to Help You or Your Client?

• Although I don’t agree, most experts come from outside immediate location of loss.

• Scheduling for site visits, meetings, deposition preparation, and mock trials can become a nightmare IF the expert is unwilling or not fond of travel.


Let’s Pick the Expert!Case 1 – Serious auto accident; death of driver from alleged malfunction of a part.

Need a mechanical engineer/

accident reconstructionist• BS, MS, Ph.D.?• Need a P.E. in state where

accident occurred?• Years experience: 1, 5, 15?• Need other experts? Who?


Let’s Pick the Expert! Case 2 – Defense of corporate client for national class action of asbestos exposure.

Need an industrial hygienist and

toxicologist• Local professor or national

expert?• Certifications? CSP/CIH?• Interview potential list?• Is past litigation experience

necessary or required?


Let’s Pick the Expert! Case 3 – Large chemical plant explosion with five fatalities.

• Need multiple experts? Who?• Qualifications?• Experience?


Let’s Pick the ExpertCase 4– Low budget insurance subrogation case involving minor personal injury from drain opener.

• What type (s) of experts needed?

• Qualifications?• Need certified expert

(s)?• College professor

okay?

The good, bad & ugly of using UD law school april 2008

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