Tony Lehman | The Dispute Resolver | May 29, 2015<\/p>\n
Everyone uses experts. But, can you tell the difference between an expert and a pseudo-expert?<\/p>\n
Jim Cohen of Weidlinger Associates Inc., and Dan Valentine of Simpson Gumpertz & Heger, Inc. have seen a lot of good expert work in their practices, but they have also seen a lot of lawyers, clients, and courts misled by people through inflated credentials, slanted opinion, and advocative testimony.<\/p>\n
In a four-part series, Jim and Dan will help you to avoid pitfalls in choosing experts and expose whether an opposing expert knows what they are doing. \u00a0As part of these articles, I am assisting Jim and Dan by providing an attorney’s perspective — or at least my <\/strong><\/i>perspective —\u00a0along the way so that, together, the three of us can help all of you in your work with experts<\/a>.<\/p>\n BY:\u00a0<\/strong><\/p>\n James Cohen, PE, <\/strong>Associate Principal, Building Pathology and Investigations, Weidlinger Associates Inc.<\/em><\/p>\n –and–<\/p>\n Daniel P. Valentine, Esq., P.E., <\/strong>Senior Project Manager, Simpson Gumpertz & Heger, Inc.<\/em><\/p>\n In nearly every construction case, the parties turn to expert testimony to support their respective positions. As most construction lawyers are aware, certain baseline requirements must be met for a purported expert to be allowed to testify.\u00a0 The basic framework is set forth in Federal Rules of Evidence 702:<\/p>\n Rule 702. Testimony by Expert Witnesses\u00a0<\/strong>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\u2019s 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.<\/p><\/blockquote>\n Note that although this rule sets forth criteria for the admittance of testimony, embedded in its first sentence is the requirement that the witness \u201cis qualified as an expert.\u201d\u00a0 This qualification process is grounded in the Supreme Court\u2019s holdings in\u00a0Daubert v. Merrell Dow Pharm<\/em>., 509 U.S. 579 (1993),\u00a0and its progeny.<\/p>\n As a result, it is a threshold issue to establish whether your witness is an expert before even considering whether his or her proffered testimony satisfies the requirements of FRE 702.\u00a0 As stated at the beginning of FRE 702, the witness may be qualified as an expert by virtue of the individual\u2019s knowledge, skill, experience, training, or education.\u00a0 These foundational issues are usually satisfied through a review of the individual\u2019s curriculum vitae<\/a><\/em>.<\/p>\n Having established the witness as an expert, one must then examine the four requirements of FRE 702 to assess whether the expert\u2019s testimony is admissible.\u00a0 An expert will demonstrate his or her scientific, technical, or other specialized knowledge through their curriculum vitae<\/a><\/em> and by examination and cross-examination. The expert\u2019s opinion and the principles and methods upon which it is based typically will be presented in an affidavit, report or testimony. The trier of fact, as well as the expert witness\u2019s client, are typically insufficiently knowledgeable of the technical issues to fully and reliably determine if the credentials are real, the data are reliable, the principles and methods are acceptable and the application of those principles and methods are appropriate. \u00a0But once the witness\u2019s proffered testimony meets the requirements of FRE 702, the trier of fact may then make his or her own assessment of the expert witness\u2019s credibility and determination of the weight to be accorded to the expert witness\u2019s testimony and expert opinion.<\/p>\n Nevertheless, there is ample room for an unscrupulous individual to present themselves as an expert<\/a> falsely and their opinions as coming from an expert. In the best-case scenario, you will uncover the overt misrepresentation of credentials and conclusions before engaging the expert.\u00a0Then, you choose a different expert and go into battle.<\/p>\n A step worse is if you have engaged the expert already, only you are able to uncover their puffery, misrepresented resume, or lack of education or experience in the field in which you need expert testimony before the purported expert testifies in a deposition or provides a report.\u00a0 At least at this point in time, you still have the opportunity to replace the expert.<\/p>\n Even worse would be if the expert\u2019s failure to be qualified is determined after a deposition but before Daubert<\/a> <\/em>motions are filed. You may still have the opportunity to change out experts at this point, but the damage may already be done.<\/p>\n Going further, you could end up losing your testifying expert through a Daubert<\/em> motion.\u00a0 Then, your choice of experts has not only caused you problems \u2013 it has caused your client to lose a significant amount of money only to be left without a testifying expert and subject to losing a claim on summary judgment.<\/p>\n Perhaps the worst-case scenario might be when your opponent may defrock your expert under cross-examination<\/a> at a hearing or, perhaps as a tactical maneuver, at trial when it is too late for you to retain a new expert or regain the trust of the trier of fact. Not only would you lose the claim on which the expert is testifying, you may also lose other claims as well due to your lost credibility.<\/p>\n Alternatively, suppose no one uncovers the fact that the expert really is not an expert.\u00a0 In this case, assume that you, your client, and ultimately the trier of fact will innocently accept and rely upon the expert\u2019s inexperience, poor judgment, lack of knowledge, or misapplication of principles and methods towards the issues being addressed. The bad result here is less obvious than before but perhaps even worse: your client loses faith in your abilities and spends lots of money chasing a claim that it otherwise might not have pursued except for your advice based on this expert\u2019s work.\u00a0 Then, when the case goes awry, it\u2019s your fault and you have lost a client.<\/p>\n Is there a problem with an expert\u2019s credentials? It\u2019s better to know the answer to this question sooner rather than later, as illustrated by the following cases:<\/p>\n 1)\u00a0\u00a0\u00a0 A firearms expert scheduled to testify on behalf of the State, killed himself after it was discovered that he had falsified his credentials and training. The defendant, whose conviction was based, in part, upon the expert\u2019s testimony filed a motion for a new trial citing as newly discovered evidence the fraudulent credentials of the expert.<\/p>\n Mayes v. Maryland<\/em>, 2010 U.S. Dist. LEXIS 114741, 6, 2010 WL 4238149 (D. Md. Oct. 26, 2010)<\/p>\n 2)\u00a0\u00a0\u00a0 The Supreme Court of Wisconsin vacated an inmate\u2019s conviction concluding in a trial \u201crife with conflicting and inconclusive medical expert testimony\u201d that it was likely that the jury would have had a reasonable doubt had it discovered that the expert witness lied about his credentials.<\/p>\n State v. Plude<\/em>, 750 N.W.2d 42, 53 (Wis. 2008)<\/p>\n 3)\u00a0\u00a0\u00a0 Appellants challenged a decision that vacated an arbitration award on the basis of fraud.\u00a0 They argued that the trial court erred because the appellants committed no fraud and because the only fraud was that of the appellees’ own expert witness, who presented false credentials.<\/p>\n A. G. Edwards & Sons, Inc. v.Petrucci<\/em>, 525 So. 2d 918, 918 (Fla. Dist. Ct. App. 2d Dist. 1988)<\/p>\n 4)\u00a0\u00a0\u00a0 A landowner involved in litigation engaged an expert witness to testify at the damages stage of the trial. At deposition and at trial the expert testified to his extensive educational and experiential credentials, but the other side impeached him with strong evidence of their falsity and obtained a large verdict in their favor. The landowner then sued the expert for deceit and misrepresentation, arguing that it relied on the expert’s assurances, made in his resume and other materials, in retaining him as an expert and then presented him at trial based on his further assurances at deposition. The court agreed, because the landowner presented documentary evidence of its reliance on false information while the expert presented only his self-serving, conclusory affidavit in response.<\/p>\n Sturbridge Isle Realty Corp. v. Brown<\/em>, 2001 Mass. Super. LEXIS 467, 1, 13 Mass. L. Rep. 607 (Mass. Super. Ct. 2001)<\/p>\n 5)\u00a0\u00a0\u00a0 A prisoner’s petition for writ of actual innocence was denied properly because the discovery that the ballistic expert\u2019s credentials were falsified did not create a substantial or significant possibility that the result might have been different.\u00a0 In addition, there was no showing that evidence regarding the “expert’s” education could not have been discovered through the exercise of due diligence.\u00a0 Based on this, the “expert’s” false testimony regarding his credentials was not material, but merely impeaching. His claim to have college degrees that he did not actually possess has nothing to do with the accuracy of his conclusion concerning the distance the victim was from the gun when it was shot.<\/p>\n Jackson v. State<\/em>, 86 A.3d 97, 98 (Md. Ct. Spec. App. 2014)<\/p>\n 6)\u00a0\u00a0\u00a0 A pro se defendant sought a new trial on the grounds that his counsel failed to properly investigate the credentials of a government expert witness who falsely testified that he was a “board certified pharmacist.” The government opposed the defendant’s motion on the grounds that the defendant could neither show that his counsel was ineffective nor that he could show that the government should have known of the witness’ perjury.<\/p>\n In considering the defendant’s supplemental pleadings regarding the claims of ineffective assistance of counsel and that the government should have known of the expert witness’ perjury, the Court concluded that the defendant failed to put forth a viable ineffective assistance of counsel claim and that the defendant failed to put forth any evidence that the government should have known of the expert’s perjury.<\/p>\n United States v. Price<\/em>, 357 F. Supp. 2d 63, 65 (D.D.C. 2004)<\/p>\n It is unlikely that, in the cases cited above…<\/p>\n To finish reading this article<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"Expert Witnesses \u2013 False Representation of Credentials \u2013 An Introduction<\/h2>\n
The Basics: The Federal Rules of Evidence<\/strong><\/em><\/h4>\n
Establishing the Witness as an Expert<\/em><\/h2>\n
When Things Go Wrong: Experts Who Are Not Experts<\/em><\/h2>\n
Cautionary Tales Involving Defrocked Experts<\/em><\/h4>\n