Selecting and Preparing Plaintiff’s Experts
by Jeffrey N. Roy
The Role of the Expert in Litigation
Expert witnesses have become prominent players in the courtroom. The fact finder in a case needs expert testimony to help it reach decisions in cases and to guide it to the truth. Expert testimony is useful in allowing the fact finder to figure out what happened in a case, when what happened is beyond ordinary experience. The Federal Rules of Evidence embody a “strong and undeniable preference for admitting any evidence having some potential for assisting the trier of fact.” DeLuca v. Merrell Dow Pharmaceutical, Inc., 911 F.2d 941, 956 (3d Cir. 1990). “Rule 702, which governs the admissibility of expert testimony, specifically embraces this policy,” United States v. Velasquez, 64 F.3d 844, 849 (3d Cir. 1995), and has a liberal policy of admissibility. In re Paoli R.R. Yard Litigation (“Paoli II”), 35 F.3d 717, 741 (3d Cir. 1994). Together, Rules 702 and 104(a) instruct the district court in determining the admissibility of expert testimony. Rule 702, which is the same as Rule 702 of the Massachusetts Proposed Rules of Evidence, provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Under Rule 104(a), the district court makes preliminary determinations whether the proposed expert witness is qualified and whether the testimony to be given is admissible under Rule 702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796 (1993). This preliminary task ensures that the testimony meets a minimum threshold of reliability and relevance. Id. at 2795; Velasquez, 64 F.3d at 829.
The same rules govern the admissibility of expert testimony in Massachusetts State courts.
The trial judge has a significant function to carry out in deciding on the admissibility of a scientific expert’s opinion. If the process or theory underlying a scientific expert’s opinion lacks reliability, that opinion should not reach the trier of fact. Consequently, the judge must rule first on any challenge to the validity of any process or theory underlying a proffered opinion. ”This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 2796. The judge thus has a gatekeeper role.
Commonwealth v. Lanigan, 419 Mass. 15 (1994) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993)).
Experts essentially have two functions in litigation, consulting and testifying. The consultant expert can help counsel decide whether to take a case, and if the case is accepted, what theories of liability to allege in the complaint. Consultant experts may also help in framing discovery, and may also be used to prevent a trial expert from developing information harmful to the case, which may be discoverable by opposing counsel. Opposing counsel has a much broader right to discovery from a trial expert than from a consultant expert.
Trial experts will be used to present opinion testimony to the fact finder. In this case, when selecting, preparing and presenting trial expert testimony, heavy consideration must be given to these basic rules of usefulness and admissibility. During the preparation of a trial expert, careful attention must be given to the discovery rules for experts. For example, under the Federal Rules of Civil Procedure Rule 26(a)(2)(B), be prepared to provide the following information concerning your experts:
1. A complete statement of opinions to be expressed and the basis and reasons therefore;
2. The data or other information which s/he considered in forming the opinions;
3. Any exhibits to be used as a summary of or support for his/her opinions;
4. The expert’s qualifications;
5. A list of his/her publications within the preceding ten years;
6. Compensation to be paid for the study and testimony;
7. A listing of any other cases in which the expert has testified at trial or by deposition within the preceding four years. The testimony listing should include the following:
b. Trial or deposition testimony
e. Docket Number
If all rules are not complied with in disclosure of report, the court can prevent the expert from being introduced to the case.
Selection and Retention of Experts
in Multiple Chemical Sensitivities Cases
Before retaining any experts, make an assessment of the case’s value, budget proposed expert expenditures, and carefully evaluate which experts will be necessary. In these cases, as in any personal injury case, you will need medical experts such as the following:
1. Treating physicians;
2. Occupational medicine specialists;
3. Clinical conditions of concern, such as:
In addition to medical experts, you will need to consult with general toxic tort causation, liability, and damages specialists, such as:
3. Geneticist or teratologist
4. Occupational medicine specialist
5. Exposure assessment experts such as:
a. Industrial hygienist
c. Laboratory chemist
d. Governmental personnel
e. Environmental engineer
h. Chemical engineer
6. Liability Experts (“Breach of Duty”)
a. Chemical applicator
b. Process engineer
c. Chemical engineer
d. Government inspector (for example, OSHA or state agency)
e. Human factors analyst
7. Damages Experts
b. Real estate appraiser
d. Life care planner
e. Rehabilitation psychologist
f. Vocational rehabilitation specialist
Experts can be located through various sources, including the following:
1. Other attorneys
a. Association of Trial Lawyers of America (ATLA)
b. Jury verdict reporters
c. Philo, Lawyers Desk Reference (8th ed. 1996)
2. General sources
a. Experts revealed through academic literature review (for example Medline and Toxline)
b. Local colleges and universities
d. Expert referral services
The Internet offers lawyers a wealth of data — law data, business data, scientific data, demographic data. And very little of it is surcharged beyond the costs of accessing the Net and the time of finding and acquiring the information. Information comes in many forms other than the packages we objectify as books, documents, or even data. The Internet offers powerful mechanisms for asking questions and receiving answers, for entering into a more extended consultation with an expert, and for finding the right person or people. Here are some of the sources I have turned to when considering expert testimony and preparing for a case, together with the relevant Internet addresses:
1. LERN is the On-Line service of the Legal Research Network. The mission of LERN is to network attorneys and expert witnesses in an on-line environment, using the online technology to help the legal profession find experts more economically than with conventional methods. http://www.witness.net/index2.html
2. The information and links at http://knock-knock.com/forensic.htm are designed to provide a free and centralized resource on the business, marketing, and research uses of the Internet by both lawyers and expert witnesses. It includes information from a seminar in Palm Springs, California at the 13th Annual Conference of the National Forensic Center. The site contains an active hyperlink version of the handout from the seminar, which contains a list of useful Net sites and resources.
3. Registered Nurse Experts, Inc. is an association of approximately 80 specialists who represent all areas of healthcare. It takes pride in providing experts in any field of nursing, radiation, physical, occupational, respiratory and parenteral therapy, nutrition, pharmacy and more. Its goal is to assure satisfaction by providing responsive professional services. If you would like to learn more about its services, please visit the web site:http://www.rnexperts.com or you can contact RNE at 1 800 759-6938.
4. Try http://www.asme.org: The American Society of Mechanical Engineers (ASME) has a number of committees that produce various codes and standards.
5. What’s on the Web & the Internet for Experts: Try Zeno’s Forensic Page athttp://zeno.simplenet.com/forensic.html.
6. The Forensic Consultant’s Association home page address is http://www.forensic.org/
7. To all of you who are interested in the construction area – and specifically construction defects I would like to suggest you check the following web sites:
You will find information and links to a wealth of data and direct Q&A on-line.
8. If you ever need a toxicologist, check website: http://earthlink.net/~bendix/
9. The American Society for Testing and Materials (ASTM) has recently put up its homepage at http://www.astm.org. The page includes general information about ASTM, as well as an on line application form.
10. Attorneys Seeking Expert Witnesses. Refer to Home Page:http://www.starworld.com/mindsource/experts.html
11. Are your attorneys are in need of data about state sanctions and disciplinary actions about any medical provider (physicians, nurses, dentists, chiroprators, etc.) in the US to help them develop a medical malpractice or personal injury case? The Managed Care Advisory Group can supply this data on-line at a very low cost. See it at http://www.goodmed.com
12. Do you want a single BOOKMARK that contains over 30,000 legal resource links? LawResearch’s FREE TEST DRIVE, of Version 2.0 with 20,000 links is available athttp://www.lawresearch.com/afree.htm
13. The mission of the United States Environmental Protection Agency is to protect public health and to safeguard and improve the natural environment – air, water, and land – upon which human life depends. Check out its Web site at: http://www.epa.gov/
14. As the world’s largest trial bar, the Association of Trial Lawyers of America (ATLA) promotes justice and fairness for injured persons, safeguards victims’ rights — particularly the right to trial by jury — and strengthens the civil justice system through education and disclosure of information critical to public health and safety. With about 60,000 members worldwide, and a network of U.S. and Canadian affiliates involved in diverse areas of trial advocacy, ATLA provides lawyers with the information and professional assistance needed to serve clients successfully and protect the democratic values inherent in the civil justice system. http://www.atlanet.com/
15. New Junk Science Homepage at www.junkscience.com. Visit www.junkscience.com for the latest in public health and environmental junk science! Read about:
a. What’s hot!
b. What’s current!
c. Special guest commentary
d. The junk science hall of shame (the truly infamous!)
e. The junk science pennant race (institutions and funders)
f. Running roster of junk scientists (They name names)
16. National Technical Information Service. The Official Resource for U.S. Scientific, Technical, Engineering, and Business-Related Information: http://www.ntis.gov.
17. ABA’s Tort and Insurance Practice Section (TIPS) The Section is the only national professional group to bring together plaintiffs attorneys, defense attorneys and insurance company counsel for the exchange of information and ideas. In this unique non-adversarial setting, TIPS members have the opportunity to interact on a personal basis with nationally renown experts in tort and insurance matters. http://www.abanet.org/tips/home.html.
18. FindLaw Index of Legal Resources: http://www.findlaw.com/index.html.
19. Lawyers Weekly: Over 125,000 Lawyers Across the USA Read Lawyers Weekly Newspapers: http://www.lweekly.com.
20. Center for Disease Control and Prevention: www.cdc.gov.
21. Expert Witness Mailing List: The Expert List is an Internet mailing list conference for the various technical professionals that engage in expert witness activities. If you perform expert witness services now, want to start offering your services as an expert witness, are in the legal profession and use expert witnesses, then this conference is for you.
To join the list, simply send an e-mail message to:
and place the phrase
SUBSCRIBE EXPERT-L (your e-mail address)
in the message body. A file will be e-mailed back to you giving more information about the list, and how it works.
Checking Experts Qualifications to Testify
When you have located and identified an expert you must then analyze whether this person is qualified to do job you want. In performing that analysis, attempt to do the following:
1. Review expert’s publications
2. Get clear understanding of billing practices
3. Check with other attorneys or experts
4. Check on expertise regarding chemical of concern
5. Judge the expert as a witness
a. Consider articulation, credibility, sincerity, authoritativeness, and strength on cross-examination
b. Review prior transcripts of testimony
c. Unearth any skeletons in expert’s closet
d. Find out how often expert testifies for plaintiffs and defendants
Initial Preparation of experts
You should retain your experts early on in the litigation. If there is a site to be viewed and examined, accompany the expert on the initial visit and learn from the experience. Have the expert give you a guided tour of the place and substances in issue and describe the testing that will be performed at the location.
Also, at the outset, make sure that the expert is comfortable with the qualifying words for the legal standards regarding admissibility of evidence. An expert must testify to probabilities, not possibilities or conjecture. Therefore it is important that opinions be expressed in terms of “reasonable certainty or probabilities.” The actual phrasing of an opinion need not follow any rigid formula. In Massachusetts, almost any language is permissible as long as the court interprets it as meaning that the occurrence is more probable than not. See e.g. 1 Mottla, Proof of Cases in Massachusetts, §349 (3rd ed. 1995); Afienko v. Harvard Club of Boston, 365 Mass. 320, 333-334 n.6 (1974); Sevigny’s Case, 337 Mass. 747 (1958); Kerr v. Palmier; 325 Mass. 554 (1950); Josi’s Case, 324 Mass. 415 (1949); Duggan’s Case, 315 Mass. 355 (1944); DeFlippo’s Case, 284 Mass. 531 (1933).
In a product liability case specifically, there is no requirement that plaintiff prove with precision the defect which caused an injury. Carey v. General Motors Corp., 377 Mass. 736, 740 (1979). Further, the precise manner in which the harm occurs does not have to be foreseen. Solimene v. B. Grauel and Co., K.G., 399 Mass. at 798. Instead, plaintiff can fully satisfy his burden of proof by showing that there was a probability that the harm which occurred was due to one or more defects for which defendant was responsible. Id.
The holding and analysis in Carey v. General Motors Corp., 377 Mass. 736 (1979) is compelling in this regard. In Carey, plaintiff’s case rested largely on the testimony of a mechanical engineer. He described three defects that could have caused the plaintiff’s injuries. In particular, the expert testified that “since each defect would cause the same occurrence in a similar way,” he could not identity with certainty the defect which caused the injuries Id. at 740. Each defect, in the expert’s opinion, was as probable as the other, and “surely it had to be one of them” which caused plaintiff’s injury. Id. Against this backdrop the Carey court ruled that the evidence was sufficient to satisfy plaintiff’s burden. Id. at 740-741. In so doing, the court reasoned that jury verdicts may not be based on conjecture or surmise; however, because plaintiffs are “not required to eliminate entirely all possibility that the defendant’s conduct was not a cause….,” proof that the harm was probably due to causes for which defendant was responsible is sufficient. Id. See also Solimene, 399 Mass. at 797-798 (plaintiff advanced alternative theories of design defect—burden of proof satisfied).
You should maintain your own library on the expert’s subject matter. For one, it will help you learn and become somewhat fluent in the topic in question. Additionally, it is far less expensive to supply an expert with material than it is for multiple experts to hunt for materials on their own. In that regard, ask your experts what texts or materials are authoritative in the field. Authenticating these texts will enable you to read from them and offer them into evidence during the trial of the case. In addition, be aware of any scientific studies or compilations that may be independently admissible if properly authenticated by your expert.
You must review all medical records and exposure records, index them, and supply them to the expert for review. During the preparation phase, the expert will assist you in understanding this chemical, engineering, damage, and medical information. The expert will also help in case development, including initiating and responding to discovery. At some point, the expert will also be able to provide testimony by affidavit (at the summary judgment stage), deposition, and eventually at trial.
Before having the expert testify, be certain that you understand the bases for the expert opinion. Look for the following when evaluating and considering the bases for your expert’s opinion(s):
1. Toxicological studies performed on animal populations;
2. Epidemiological studies;
3. Published, peer-reviewed data;
4. Data developed from case discovery;
5. Governmental reports and records;
6. Independent testing and analysis
You should be absolutely certain of all of the expert’s opinions before making disclosure. You should also be cautious about having your expert formulate opinions early on in the case. Often times, in a rush to judgment, we request opinions from experts before giving them the opportunity to review all of the case data. This makes great father fodder for cross-examination of the expert by opposing counsel. In that regard, you should avoid securing written reports from the expert early on in the case (if at all), unless submission of reports is required. Any preliminary reports should be communicated to you orally if possible. This helps you avoid the danger of having an expert committed to an opinion without first having had an opportunity to review all of the case data.
You should meet with the expert prior to disclosure to go over the theories of liability and expected expert testimony. Make sure the expert is aware of and familiar with adverse studies and materials in the case. Make sure that you expert is familiar with the pre-exposure medical history of your client. Discuss the issues that will arise during cross-examination, including treatises which may contradict your expert, prior experiences, prior engagements of your expert, income from expert witness activity, and how to deal with a lack of hands-on experience, if applicable. Finally, make sure that your expert’s opinion(s) are tightly confined and do not drift beyond areas of expertise.
As the trial approaches, your expert can assist you in the preparation of demonstrative evidence. As expert testimony can get rather dull, be certain to include graphic reproductions that can communicate effectively to a lay audience. For example, I have spent many hours with doctors and medical illustrators in the same room discussing models, pictures, x-rays, and overlays which clarify the anatomical issues in the case. Allowing the doctor to communicate directly with the medical illustrator produces the most effective graphics.
At trial, your case will be most persuasive if your expert is a teacher. You stand a better chance of winning the case if the jury fully understands the issues your expert is addressing. Your interrogation of the witness should facilitate and enhance this role by the choice and structure of the questions. At the same time, you must strive to keep the testimony simple. In that regard, try to keep the testimony of the expert focused and organized around one or two unifying themes.
While the use of hypothetical questions is frowned upon by many modern practice commentators, when carefully structured and used, they can be an effective tool in a complex case. The hypothetical question can be used to summarize the evidence persuasively, and to give helpful repetition to the essential points in the case. The hypothetical question is not necessary under current practice rules, but may be helpful at times in clarifying the issues for the jury. For example, in an ozone contamination case, I found the following hypothetical helpful in summarizing the evidence for the jury:
Mr. _____________, I am now going to ask you to consider certain facts that are contained within the evidence of this case. During December 1987, the client’s home was equipped with two ___________ electronic air cleaners. One controlled the air on the first floor of the home, one controlled the second floor. On June 27, 1988, representatives from ____________ tested the client’s home for the presence of ozone gases. For the three days prior to their arrival, the electronic air cleaners had been constantly running and filtering the household air. After testing on June 27, 1988, on the first floor of the home, the defendant company found normal levels of ozone in the air. Outside of the home, the defendant company found normal levels of ozone in the air. On the second floor of the home, and in the master bedroom specifically, the defendant company found high levels of ozone in the air. Those in that area of the home reported smelling ozone. When the air cleaner controlling the upstairs are was turned off, the level of ozone decreased. When the air cleaner was turned on again, the ozone level increased. Upon further examination, it was found that the air cleaner had a missing ionizer wire and two bent collector blades which were arcing. The arcing was constant and resulted from the closeness of the blades which produced 4,000 volts each. Following testing on June 27, 1988, the electronic air cleaner and ventilation system were deactivated for the evening, and the next morning the level of ozone had fallen to normal levels. Now, please consider those facts, along with the results of the testing done in your lab on the electronic air cleaner. Tell us whether you are able to reach an opinion, with a reasonable degree of scientific certainty, on whether the electronic air cleaner was defective and unreasonably dangerous.
Q. What is your opinion?
Q. What is the basis for your opinion?
The hypothetical was drafted prior to trial with the assistance of the expert. The hypothetical was used in that case in order to assist the expert and make him more comfortable in rendering the necessary opinion testimony. While I would not advocate the use of the hypothetical question in every case, be aware that it can be used and can be helpful in the appropriate circumstance.
Finally, another note about causation issues is important here since your experts will provide the critical testimony on this issue. As noted above, the plaintiff in a tort case must prove by a preponderance of the evidence that the injury is the result of the defendant’s negligent act or failure to act. This standard is often more burdensome for toxic tort victims than for other plaintiffs. Most toxicants do not produce unique injuries. Since the background rates for the types of diseases associated with toxic exposures are not insignificant, establishing that the plaintiff’s illness resulted from the exposure is difficult. Many plaintiffs will be able to show only that the exposure increased the risk of acquiring the disease. Despite the near impossibility of establishing that the exposure is the legal cause of harm, most courts continue to use the preponderance of the evidence standard. Some courts, however, have departed from this standard in latent disease cases. For example, in Allen v. United States, 588 F. Supp. 247, 322 (D. Utah 1984), the court proposed shifting the burden of proving causation to the defendant if the plaintiff can show that the defendant created a risk to an identifiable group and the plaintiff is a member of that group and developed a disease consistent with the risk created by the toxic exposure. While such a rule has not been adopted in Massachusetts, it is one worth exploring.
Spoliation of Evidence by Experts
During the course of the litigation, your expert may be required to examine and possess valuable evidence in the case. The spoliation or destruction or material alteration of evidence in a case can result in severe potential sanctions. In Nally v. Volkswagon of America, Inc., 405 Mass. 191 (1989), the Massachusetts Supreme Judicial Court confronted this issue directly, and announced the following rule:
We conclude that, in a civil case, where an expert has removed an item of physical evidence and the item has disappeared, or the expert has caused a change in the substance or appearance of such an item in such circumstances that the expert knows or reasonably should know that that item in its original form may be material to litigation, the judge, at the request of a potentially prejudiced litigant, should preclude the expert from testifying as to his or her observations of such items before he or she altered them and as to any opinion based thereon. The rule should be applied without regard for whether the expert’s conduct occurred before or after the expert was retained by a party to the litigation. The reason for the rule is the unfair prejudice that may result from allowing an expert deliberately or negligently to put himself or herself in the position of being the only expert with first-hand knowledge of the physical evidence on which expert opinions as to defects and causation may be grounded. Furthermore, as is possible in this case, the physical items themselves, in the precise condition they were in immediately after an accident, may be far more instructive and persuasive to a jury than oral or photographic descriptions of them. As a matter of sound policy, an expert should not be permitted to intentionally or negligently destroy or dispose of such evidence, and then to substitute his or her own description of it.
Id. at 197-198.
Outline of Examination of
Plaintiff’s Treating Physician
Now that the trial is nearing, you need to meet with your expert to prepare for his/her actual trial testimony. The following outline gives you a general description of the topics with your treating physician. Use it as a guide an your preparation meeting with the expert and tailor it to the specific issues in your case.
1. Date and state of medical license,
2. When s/he attended school and medical school, including the dates of graduation;
3. where s/he did internship and residency;
4. what specialized training was received;
5. a description of the doctor’s specialty (with explanation of terms);
6. the witness’ practice including military service;
7. hospital affiliations and the nature of each;
8. any membership in medical associations and academics;
9. any medical school affiliations;
10. the doctor’s certifications including a description of the Board and its certification requirements
11. any publications, professional journals or texts written;
12. any professional honors received.
B. MEDICAL HISTORY
1. Did the doctor conduct an examination of the plaintiff? (When/where?)
2. Did the doctor take a history at that time from the plaintiff?
3. Did the doctor have medical records available to review? (Which records?)
4. What is the purpose of taking a history?
5. Based upon his review of the records and interview of the plaintiff what was the history that he obtained. (explain terms)
6. The history should include:
a. statistical data (name/age etc.)
b. any significant past medical history
c. the plaintiff’s chief complaints
d. character of onset and the chronological development of symptoms including cause, character, severity and location
1. Did the doctor conduct an examination?
2. What comprised the examination?
3. Significant findings upon examination
4. Were any diagnostic tests performed?
a. have the doctor explain the test and findings on exam.
b. have the doctor explain the significance of any positive findings.
5. Medical illustration
i. Doctor, would it assist you in describing the examination you made by using or referring to a chart or diagram or model?
ii. Show exhibit and ask if it is a fair and accurate reproduction and representation of a ___________?
iii. Would it be of assistance to you in communicating to us and in answering questions I have asked you about your examination?
1. Following your examination and history, did you render a diagnosis?
2. What was the diagnosis?
3. What was the basis of your diagnosis?
E. PRESENT CONDITION
1. Doctor, based upon your most recent examination of the plaintiff do you have an opinion to a reasonable degree of medical certainty as to the plaintiff’s present functional disability for medical condition)?
2. What is that opinion?
3. What is the basis of the opinion?
4. If the plaintiff has a measurable functional loss, ask the doctor how the loss was measured? What is the significance of such a loss of function to a person’s ability to use the injured body part or to function.
F. THE CAUSE OF THE INJURY
1. Based upon your examination of the plaintiff, history obtained, treatment of the plaintiff and review of the plaintiff’s medical records, your education, experience and training, do you have an opinion to a reasonable degree of medical certainty as to the cause (proximate cause) of the plaintiff’s injuries/disabilities/loss of function?
2. What is the opinion?
3. What are the reasons for the opinion?
G. PROGNOSIS AND PERMANENCY OF INJURY
1. Do you have an opinion…as to the plaintiff’s future ability to work/function/use the injured limb?
2. Doctor what is the plaintiff’s prognosis?
3. Can we expect the disability to improve/get worse?
4. Inquire into:
– future pain
– future complications
– any future deterioration which would be expected
– the need for future medical treatment (and estimated cost)
– plaintiff’s future disability and/or functional loss
For more information on specific testimony to be elicited from your other experts, I refer you to the Rossi text entitled Expert Witnesses which his cited in the Suggested Further Reading section of this paper. The book provides the practical framework for the use of many different types of experts, including specifically, experts in environmental, toxic tort, or drug cases. The book is available from the American Bar Association.
1. Rossi, Expert Witnesses (American Bar Association 1991).
2. Philo, Lawyers Desk Reference (8th ed. 1996).
3. Harr, A Civil Action (Random House 1995).
4. Kirk R. Presley, “Stalking the Silent Killer: Carbon Monoxide,” TRIAL, August 1996, page 36.
5. Larry E. Coben, “The Daubert Decision: Gatekeeper or Executioner?” TRIAL, August 1996, page 52.
6. Commonwealth v. Lanigan, 419 Mass. 15 (1994).
7. Rotman v. National R.r. Passenger Corp., 41 Mass. App. Ct. 317 (1996).
8. Mark Gottlieb and Richard A. Daynard, “Blowing Smoke Out of the Workplace,” ” TRIAL, August 1996, page 24.