Changes to Rules Governing Expert Testimony Imminent

Michael Guggeinheim | Proskauer Rose

Last month, the Advisory Committee on Evidence of the Judicial Conference of the United States’ Committee on Rules of Practice and Procedure voted to unanimously to recommend certain amendments to Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony.  This vote signals imminent changes that could significantly affect federal practitioners’ requirements to demonstrate their experts’ reliability.

Rule 702, which was further explicated by the seminal case Daubert v. Merrell Dow Pharmaceuticals, Inc., allows for an witness to testify in the form of an expert opinion if the propounding party demonstrates the following foundation:

“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.”

The advisory committee approved two amendments to the rule that clarify that an expert must meet all four elements of Rule 702 by a preponderance of the evidence, and require that the expert’s opinion “reflects a reliable application of the principles and methods.” The amended rule would thus read as:

“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 the proponent has demonstrated by a preponderance of the evidence that:

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’s opinion reflects a reliable application of has reliably applied the principles and methods to the facts of the case.”

The amended rule, therefore, more clearly establishes that judges should take a discerning approach to expert witness testimony, ensuring that only reliable evidence is presented to the jury as part of their deliberations.  With respect to Rule 702(d), the amendment removes the current, more nebulous “reliably applied” standard with a new guidepost that heightens the judge’s role as the gatekeeper of evidence.

The proposed changes to Rule 702 seem to be in response to growing concerns about unreliable expert testimony being admitted. While expert opinions are most often used in civil cases, concerns have also been raised about unreliable expert testimony in criminal proceedings. There has also been confusion between courts as to what standard to apply, with some courts applying the preponderance standard while others appearing to apply no discernable standard at all. Amending the rule as the Advisory Committee on Evidence has recommended could go a long way to ensuring that expert witnesses are subject to rigorous, and consistent, verification before their testimony is heard by the jury.

If these amendments are approved—which is expected later this summer, with final enactment in December 2023 pending Supreme Court approval—trial strategies and approaches could shift markedly. To ensure that expert witnesses can lay enough foundation to meet this new standard, litigation teams will need to take extra care in their selection of experts, such as by selecting witnesses who can sufficiently demonstrate expertise in the field in which they will offer an opinion. Likewise, experts will need to prepare their materials—including merits and rebuttal reports—with an eye towards maximizing their chances of meeting this standard. Finally, counsel will need to be prepared to both defend their experts, as well as challenge opposing experts, to determine the reliability of both the methods and applications of experts’ methodologies. Engaging with counsel to secure reliable expert testimony – and ensuring that the reliability of said expert testimony is properly presented to a judge—will be essential to guaranteeing effective trial representation and securing favorable outcomes in court.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Just Because I May be an “Expert” Does Not Mean I am Giving Expert Testimony

David Adelstein | Florida Construction Legal Updates

On a construction project, it’s hard to argue that the involved parties — whether an architect, engineer, contractor, subcontractor, developer, etc. — are not experts in their field, i.e., they all some scientific, technical, or specialized knowledge or skill particular to their industry.  However, this does NOT mean when they testify in trial, at an arbitration, or at a deposition regarding the construction project they are offering expert opinions / testimony as it pertains to that project.  Testifying as to facts based on personal knowledge or involvement on a project makes you a fact witness and is different than evaluating and rending an after-the-fact opinion as to the work of others.   This does not minimize your knowledge or expertise; it simply means that relative to the construction project you are involved with, your testimony is that of a fact witness and not of an expert.  (It is possible to wear both the fact witness and expert witness hat, but that depends on your subsequent role in the litigation or arbitration.)

A good discussion on this premise can be found in a non-construction case, Buzby v. Turtle Rock Community Association, Inc., 47 Fla. L. Weekly D99a (Fla. 2d DCA 2022), dealing with whether a lawyer was testifying as an expert regarding his own fees. The attorney thought he should be paid for his testimony because he was a professional testifying as to his own attorney’s fees.  Yet, his testimony was not actually in the form of expert testimony, but factual testimony as to his own fees.  The appellate court held the lawyer was NOT entitled to an expert fee (being paid for this time as an expert), and this rationale can equally be extended to parties testifying on construction projects:

This distinction between testimony (i) describing historical facts from personal knowledge and (ii) evaluating the work of others is not limited to doctors; it applies to attorneys as well. 

Thus, the question of whether a witness testifies as an expert – and is thereby entitled to an expert fee – depends not only on the witness’s credentials, but also on whether the witness actually gives expert testimony.

***

Like a treating physician, [the attorney] testified to facts within his personal knowledge about acts that he either took or supervised.  Even though the acts [the attorney] described involved technical matters, [the attorney’s] recollections of them “are facts nonetheless.”

***

[The attorney’s] decision to volunteer an opinion about his own work did not transform the nature of the deposition or his purpose of testifying.

Buzby, supra (internal citations omitted).

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

English v. RKK- There is Even More to the Story

Christopher G. Hill | Construction Law Musings

Just when you thought that the litigation between W. C. English and RKK had no more to give (after all, there have been posts with wisdom from this case herehere, and here), it keeps on giving.  A relatively recent opinion from this litigation involved, among other pre-trial motions, motions by English to exclude expert witness testimony.  English sought to exclude Defendant CDM Smith, Inc’s expert testimony relating to CDM’s standard of care, the replacement of the bridge deck, English’s failure to fire CDM, and additional contributing factors regarding the spacing of the reinforcing steel.  English sought to exclude RKK’s expert opinion regarding English’s owed standard of care vis a vis VDOT.

In evaluating these motions, the Court applied the following standard:

An expert qualified “by knowledge, skill, experience, training, or education, may testify “as to scientific, technical, or other specialized knowledge if it will assist the trier of fact. However, such testimony is only admissible if (1) “the testimony is based upon sufficient facts or data,” (2) “the testimony is the product of reliable principles and methods,” and (3) “the expert has reliably applied the principles and methods to the facts of the case.” [citations excluded here but stated in the opinion]

In applying this standard, the Court partially granted the motion to exclude CDM’s expert.  The Court found that the expert’s experience was adequate and his opinion met the three-part test above as to the first of his opinions on standard of care.  However, the Court excluded the last three opinions for various reasons from lack of helpfulness to the jury to simply reading documents and providing his legal conclusion.  The Court excluded RKK’s expert from testifying because he would simply be providing his interpretation of certain specific parts of the factual record and such interpretation is generally the province of the jury.

This opinion provides a good overview of some of the expert witness issues that can arise in a commercial construction matter.  Construction professionals and their attorneys here in Virginia should review this case as well as those it cites when evaluating the usefulness of certain expert opinions in presenting their claims in litigation.  I highly recommend the opinion to your reading.

Great Expert Witnesses are Vital

Advise & Consult, Inc.

Construction and Property Insurance cases can be very complex and difficult for attorneys, juries, judges and those outside of the construction industry. Expert witnesses, thusly, are important in obtaining a favorable verdict. During the pre-trial preparation it can become vital for a great expert witness to inform the attorney of where their client stands and what the strengths and weaknesses of the case are.

As the case progresses through depositions and into trial, a great expert witness is vital in explaining these complex construction principles to juries and judges. Not only does the expert witness need to be knowledgeable about construction, but it is vital that they connect with the jury and judge by being personable, friendly, trustworthy and concise, but also being able to break the complex details of the case down to bite size, understandable concepts that people without construction experience can at least determine culpability.

Amy Currotto, from Merlin Law Group, says this about expert witnesses:

In establishing damages and liability under the policy, expert-witness testimony before a jury is one of the most important tools. An entire case theory can ride on the back of successful expert witness testimony, which is why policyholder lawyers should begin to consult with experts from the very beginning of a case. It cannot be overstated that winning or losing a property case often depends on the credibility and admissibility of the expert testimony. This is because without expert testimony, many property insurance cases cannot be proven.

Courts have held, when a matter is beyond the common knowledge of an average person, an expert witness opinion will be required to testify on the essential issue of causation. Policyholders who fail to present competent expert testimony on the issue often fail to prove their case which may ultimately lead to dismissal.

Richard Friedman and Patrick Malone wrote a book – Rules of the Road, A Plaintiff Lawyer’s Guide to Proving Liability states “to win cases, you must defeat complexity, confusion, and ambiguity, or they will defeat you.”

“Battle of the experts” can make the jurors skeptical, but also truly appreciate hearing the testimony of a highly educated and well-informed witness who can credibly explain to them the complicated or technical aspects of the case. Clarity is key. Being “a teacher” is vital for the expert witness to explain their findings in a way that can be commonly understood and your case can rest on this ability. Cases have been lost based on an expert’s inability to effectively communicate their opinions and methodologies to the jury. Communication can help you rise to success or it can lead to your downfall, not just for the average person, but also for an expert witness.

Claim Denied? Why Picking the Wrong Expert Can Cost You

Ian Dankelman | Property Insurance Coverage Law Blog | June 2, 2019

Picking the right expert has never been more important when fighting an insurance company that has wrongfully denied an insurance claim. The rule for expert admissibility has just changed in Florida and the same concerns about experts apply everywhere.

Under the Frye test, a party seeking to introduce expert evidence had to prove the general acceptance of the underlying scientific principles and methodology that the expert employed when advancing new or novel scientific testimony. Now, Florida has adopted the Daubert  standard, which requires the trial judge to ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.”1 In reaching this decision, the Supreme Court emphasized that the amendments would reduce forum shopping and harmonize Florida’s standard with the standard employed by federal courts.

However, in dissent, Justice Labarga cautioned that “Daubert and its progeny drastically expand[] the type of expert testimony subject to challenge.”2 One concern over the amendment the dissent highlighted was that the new standard would undermine the constitutional right to a jury trial by authorizing judges “to exclude from consideration the legitimate but competing opinion testimony of experts.”3 Another was that the new expert testimony standard would overburden the courts, impede the ability of parties to prove their cases on the merits, and increase litigation costs.

So what does this mean for policyholders? On one hand, Daubert is the well-established standard in federal court, and there is clear direction in federal case law that state judges can follow to reach reasoned rulings. It is likewise conceivable that the number of cases removed from state court to federal court will be reduced based on the amendments to the evidence code. The new standard will also give policyholders a new ability to challenge the insurers’ experts when their work does not meet the requirements demanded by the Daubert standard. On the other, policyholders’ cases may be delayed while Florida courts deal with increasing numbers of challenges to expert opinion testimony. Policyholders will likely face additional hearings on the admissibility of expert testimony that will require intense preparation.

It remains to be seen how judges will tackle the increase in challenges to expert testimony in Florida’s courts. Only one thing is certain: the amendment to the evidence code will have important ramifications on all litigation in Florida.
__________________________
1 In re: Amendments to the Florida Evidence Code, No. SC19-107 (Fla. May 23, 2019).
2 Id. at 13 (Labarga, J., dissenting).
2 Id. at 15-16.