BASIC OUTLINE SUMMARY

DAUBERT HAS RESULTED IN THE EXCLUSION OF “STANDARD”

EXPERTS IN FIRE, EXPLOSION AND RELATED PRODUCTS LIABILITY

CASES FOR A NUMBER OF REASONS.

 

DAUBERT IS FOCUSED ON ESTABLISHED AND DEMONSTRABLE

SCIENCE AND THE SCIENTIFIC METHOD, INCLUDING TESTING,

REPRODUCEABLE RESULTS, PUBLISHED SCIENTIFIC STUDIES, AND

WIDE-SCALE INSTITUTIONAL VERIFICATION OF THEORIES OF

DEFECT AND CAUSATION.

 

DAUBERT FAVORS THE ESTABLISHED SCIENTIFIC REALMS –

MECHANICAL ENGINEERING, CHEMICAL ENGINEERING, AND TO

SOME EXTENT, FIRE PROTECTION ENGINEERING.

 

C&O HAS TRADITIONALLY NOT BEEN A SCIENTIFIC DISCIPLINE; IT

HAS INSTEAD BEEN THE PLAYGROUND OF THE “OLD TIMER” AND

THE “FIRE SCENE ANALYST,” NEITHER OF WHOM IS LIKELY TO PASS

THE DAUBERT CHALLENGE UNLESS THEY ADOPT THE SCIENTIFIC

METHOD, AND DISPLAY THAT ADOPTION IN THEIR INVESTIGATIONS,

ANALYSES, REPORTS AND TESTIMONY.

 

THERE ARE SOME BASIC RULES THAT WE CAN EXTRACT FROM

RECENT CASES UNDER DAUBERT.

  

EXPERTS AND JUNK SCIENCE PRE-DAUBERT

 

Prior to 1993, an expert was whatever a judge said he was, and if an expert

witness passed muster with the judge, then any opinions that even faintly smelled of

scientific thought or technical knowledge were usually admissible. In fire litigation, this

usually meant that anyone with a fire service background, or a couple of years as a “fire

scene analyst” for an insurance company, or with any training in any field even remotely

associated with fire, could probably stand a decent chance of being allowed to testify as a

cause and origin expert. Certainly, in the minds of most judges, any of these folks

probably knew more about fire investigation than did the judge or the jurors; their

testimony had to be somewhat helpful, and helpfulness to the finder of fact was one of

the many indicia of admissibility under the Federal Rules of Evidence, and under many

state rules as well.

 

This should not have been too surprising to most of us. Since the surge in product

liability in the 1970’s and 1980’s, technical experts were spawning like frogs. There

wasn’t a technical subject in existence that didn’t need clarification before a jury, and

lapses in physical evidence could often be solved by “hypothetical questions” answered

by “experts.” Hired by lawyers and litigants, paid hourly without reference to the

outcome of the case, and able to move freely throughout the country without substantial

concern for anyone assembling a comprehensive listing of their testimony (or looking for

inconsistencies in that testimony), the “hired gun” was a creation of modern litigation.

If you were involved in fire litigation at that time, you can probably remember

some examples of the looseness that allowed fire experts to glibly solve fires from

photographs that had stumped the investigators who were on the scene. The “old

firefighter” was the predominant C&O expert, with 20 years in an engine company, 10 on

the arson squad, and an IAAI certification as his retirement bonus. With no concern for

the ramifications of his “opinions,” he freely called the cause of a fire from half a dozen

snapshots and the charred remains of a toaster oven, relying on such concepts as “a V

pattern always points to the source of the fire” and “beaded conductors indicate that the

fire started from a short in the power cord.” They often were able to miraculously find a

piece of physical evidence or an indicator that “conclusively” indicated the cause, even

when half the debris had been disposed of and half of what remained was ignored when

the photos were taken.

 

No offense to the Fire Service trained expert which has produced some very

resourceful and competent investigators, but there were no standards or systems in place

to separate the good from the bad, and no criteria available to determine whether the rules

being used to call a fire were meaningful, or just familiar. Six generations of firefighters,

learning the same erroneous C&O “rules” from each other as they pass through the

service, do not produce validity by seniority. And with very few exceptions, no one

checks on the technique of a young fire investigator except the old investigator, who

taught him the erroneous concepts to begin with.

  

Fire experts were not alone in this lack of standards to assure the validity of the

interpretive work that they did. In the Courts, there was a growing recognition that as the

topics of litigation became more technical, the need for real science and technical

knowledge became more acute. The watered-down science being offered in the

courtrooms was not keeping pace with the increasing complexity of the medical and

scientific issues involved in trials. We were flooded with “junk science,” shorthand

pseudo-science that passed for the real thing, and was more easily “adapted” by

professional experts to illustrate their opinions (but often without regard for scientific

accuracy).

 

THE JUNK SCIENCE REVOLT

 

In 1991, Peter Huber, an engineer/lawyer, released Galileo’s Revenge: Junk

Science in the Courtroom – pointing out the huge gap that had opened up between real

science and courtroom science. The trend toward reform was starting to roll.

By the early 1990’s, there was a real push on in the Courts to improve the

accuracy and validity of the scientific and technical information provided by experts.

Rules regarding the general admissibility of expert evidence were tightened, but it was

not enough. The Courts realized that they had to address the key issue – somebody had

to make a threshold determination that an “expert” was really an “expert,” and that the

opinion testimony that an expert was offering was based upon valid scientific

methodology.

 

In 1993, the U.S. Supreme Court decided Daubert v. Merrel Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). The paper that has been consumed by

articles written on this decision would fill this room several times over. But in very

simplified terms, Daubert put the judges in charge of deciding, sometimes before a trial

even starts, whether an expert is qualified to testify, and if so, whether the scientific or

technical opinion testimony that he wants to supply at trial is based upon known facts,

derived scientifically, and applicable to the issues in the case, and therefore of value to

the jury. If the answer is “no,” then very often, that’s the end of the case. In most

Federal courts, and in many state courts, experts and their testimony must be disclosed by

a date certain. If that testimony is disclosed, and is then barred as the result of a Daubertbased

challenge, there will often be no opportunity to go out and find another expert.

And in most products and fire litigation, a party with no expert will be unable to carry

their burden of proof. Courts recognize this shortfall, and often dismiss such cases when

there is no likelihood that they can succeed at trial.

 

Daubert, then, has become a weapon of choice for many defendants (and some

plaintiffs) in fire litigation. Get your opponent to commit to a particular theory of defect

and causation, usually through interrogatories and depositions; get that same opponent to

commit to particular identified experts, and their opinions (usually required by a date

certain under Court rules and scheduling orders); depose the expert after the disclosure of

his opinions, and show that he lacks significant qualifications, lacks factual foundations

for his opinions, or failed to use a scientific process to reach his opinions; and after the

expert’s testimony is barred or restricted under Daubert, move for summary judgment,

because the plaintiff can no longer prove an essential element of his case. No jury ever

gets to see the case, and you cut off the greatest uncertainty of litigation.

 

The Courts now refer to this role of judges as scientific monitors as the

“gatekeeper role.” If the expert or his opinions don’t pass muster, the gate stays closed.

Please bear in mind that Daubert does not make the judge decide whether the

ultimate opinions of the expert are valid or invalid. The focus is on credentials of the

expert, the factual basis for the opinions, and, most significantly, on the validity of the

methodology used by the expert to reach the opinions. Novel scientific theories are not

automatically excluded, as long as they are advanced by qualified people, raised because

the facts of the case suggest them, and validated by the application of the scientific

method. The tests used by the judge are flexible, and can include such issues as general

acceptance in the relevant scientific community, known error rate, testing results, peer

review, and the existence of standards applicable to the process. The more validating

factors that exist, the greater the likelihood that the testimony will be admitted.

Similarly, the absence of a Ph.D. does not disqualify an expert; witnesses with

little formal education but substantial work experience, on-the-job training and

demonstrated command of the subject matter may qualify just as easily as a college

professor. After Daubert came Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149,

119 S. Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). One of the basic rulings in Kumho Tire

was the extension of the Daubert analysis to experts other than scientists; the opinion

testimony of expert accountants, tire changers and even cause and origin experts must

undergo the same analysis, and meet the same standards. These folks would be judged

upon the scientific reliability of their accumulated experience and their application of

scientific methodology, not upon possession of a particular academic degree.

 

PICKING A C&O EXPERT POST-DAUBERT

 

For those of us who have to select experts under the pressure of a recent fire or

explosion event, this added a new concern to the checklist of things to think about before

you make a phone call looking for a C&O member of your expert team. We always had

to think about availability, resources, experience, appearance, testimonial capability, local

contacts, and rates; now we also had to think about whether this expert, when we got

down to expert disclosure in the litigation process, would meet or exceed the Daubert

analysis, or whether the other side was going to be able to bounce him, leaving us bare

and perhaps dead in the water.

 

So what can we do to assure that the C&O experts that we select will pass muster

under Daubert? What general rules can we try to assemble and use, to reduce the

chances that the experts we pick today will be allowed to testify in a year or two? One

possible source of such rules is to look at what has happened in cases that have been

reviewed on appeal; this gives us some indication of what higher courts are demanding.

 

Please bear in mind that the use and application of Daubert is not uniform throughout the

country. At the state court level, there are endless variations, but some general themes

can be found. In the Federal courts, there is greater uniformity, which is more helpful if

you have a Federal case (and this analysis may be another reason to choose removal to

Federal Court if you have the option at the outset of your case – ask your defense counsel

to include it in the decision-making process.) Daubert rules these issues in the Federal

Court system; check with your local counsel if you are dealing with a state court claim.

From recent decisions across the country that specifically apply Daubert-based

analysis, we can extract some basic rules that help us understand some of the issues that

we should consider when we hire C&O experts.

 

RULE NO. 1: MAKE SURE THE EXPERTISE MATCHES THE ISSUE

 

In Brazier v. Hasbro, Inc., a 2004 decision in the Southern District of New York,

a youngster was badly injured when he ate a small toy ball. One of the plaintiff’s experts,

an extensively qualified toy design expert, offered an opinion that the child was trying to

“free” or “hatch” an action figure that was embedded in the middle of the clear plastic

ball, blaming the toy manufacturer for creating an attractive hazard that children were

likely to try to chew. On the defendant’s Daubert motion, the Court (applying Federal

evidence law) found that the expert was unqualified to offer this particular opinion.

Although the witness had 35 years of experience in engineering and toy design, he had no

expertise in child psychology or other special qualifications in determining the minor’s

personal motivation. While he had an impressive resume on closely related areas of

expertise, he was not an expert on this particular issue. His opinion was based upon

speculation and conjecture, not scientific analysis; his opinion was excluded, and the

plaintiff lost.

 

Speculation and conjecture” are magic words in Daubert cases. If you want to

attack the factual basis of an expert’s theory, these are the arguments that you want the

judge to adopt. You must show that the expert’s leap from some facts to an extrapolated

opinion is not the result of science, but nothing more than an educated guess, dressed up

in scientific terminology. A pig in fancy clothes is still a pig, not a princess.

If your theory of cause includes electrical issues, get an electrical engineer or an

electrician with real fire experience. If it includes spontaneous combustion, get a chemist

with sufficient expertise to explain the exothermic reaction that occurred in the materials

involved. Do not rely on generalists, or those without the necessary level of education,

training and experience.

 

RULE NO. 2: YOU MAY NEED A TEAM

 

The plaintiff in McIlhenney v. Intermatic Inc., a 2004 state court decision in

Delaware, challenged several of the defendant’s experts in a fire case purportedly caused

by a malfunctioning set of low voltage lights. Repeatedly, the plaintiff claimed that

various defense experts (including an MIT-educated PhD in electrical engineering and an

engineer formerly employed by the manufacturer with extensive knowledge of the design

and manufacture of the lights) were not qualified to testify as experts because they were

not experts in “fire science.” The Court made short work of these objections, pointing

out that neither was being used as an expert in fire, but rather each would testify

regarding the particular design, electrical behavior, and heat-producing capability of the

product. Ironically, the only expert offered by the defendant who had a degree in “fire

science” was also challenged by the plaintiff as unqualified because he was not an

engineer; this challenge also failed, given the fact that he was not analyzing the design

and performance of the product, but was rather analyzing the fire, given the testimony of

the engineers regarding the product.

 

The bottom line – you may need different experts for different areas of expertise,

and perhaps a coordinated team of experts whose testimony builds upon each others areas

of knowledge. There is no “magic degree” or “magic certification.” Fire analysis is

actually a conglomeration of sciences, and you have to break it down into its various

components and match those components with the appropriate experts. Once you have

isolated the real scientific disciplines involved, get the highest level of expertise available

you are going to need it.

 

RULE NO. 3: SOME OLD TIMERS MAY STILL QUALIFY

 

In George v. Ronco Inventions, LLC (D. Kan. 2004), the defendant used many of

the common arguments to attack a generalist fire expert used by the plaintiff. The

defendant claimed that the expert was led to a particular product, lacked appropriate

education, failed to measure depth of char, etc. The plaintiffs countered with evidence

that the expert had extensive on-the-job training and experience, followed fire

investigation standards (NFPA 921), and documented his factual findings with extensive

photos and a lengthy report. The court then reviewed his reasoning and analysis, and

specifically found “no significant gaps in deductions,” nor any other basis to exclude the

opinions as unreliable.

 

In summary, vocationally trained C&O experts may still make the cut if the court

can find objective evidence of careful factual investigation and logical analysis, mixed in

with some widely accepted standards for fire scene investigation. If the old timer sticks

to the routine fire, documents the scene, follows 921, and explains his conclusions in a

thoroughly documented and logical manner, he can probably survive.

 

If you are opposing such an expert, try to raise the level of the analysis by hiring

engineers, who can distinguish their opinions with scientific analysis that is outside of the

opponent’s expert’s reach, and may persuade the judge that the old-timer is playing in a

game where he doesn’t belong. One last suggestion: if the weaknesses in the other side’s

expert are not significant, you may want to hold it for trial. Everything you disclose in a

Daubert motion is a preview for the opponent, and you lose all chance of surprise in your

cross-examination.

 

RULE NO. 4: EVEN A DEGREE FROM OXFORD WON’T FIX BAD SCIENCE

 

The plaintiff’s C&O expert in Truck Ins. Exchange v. MagneTek, Inc., 360 F.3d

1206 (10th Cir. 2004), despite a physics degree from Oxford and 20 years of fire

investigation experience, was excluded in this Colorado case when he opined that

pyrolosis from fluorescent light ballasts eventually caused wood in a restaurant ceiling to

ignite at temperatures below 300 degrees F. Stellar qualifications could not save him; he

relied upon a theory that was widely considered to be scientifically unproven and

inadequately tested. Citing a scientific article in partial support of some of his theories, he

failed to point out that the article was entitled "Pyrophoric Carbon: The Jury Is Still Out.”

The defendant and the judge read the whole article, recognized the shortcomings, and the

opinions were excluded. The Court decided that pyrolosis was not yet considered to be a

sufficiently reliable scientific theory, and excluded the witness’ testimony.

 

With the educated expert out, the defendant then moved to exclude the plaintiff’s

fire service witness, who had adopted the pyrolosis argument. Again, qualifications were

not the issue. However, this witness agreed that he worked under the umbrella of NFPA

921, and was required to support his opinion regarding cause by determining the ignition

temperature of the first material ignited, and then by showing that the temperatures

produced by the “cause,” i.e., the ballast, were sufficient to cause combustion. With

pyrolosis excluded, the operating temperature of the ballast was well below the known

ignition temperature of wood. The old timer’s theory was scientifically untenable under

his own standards, and excluded as unreliable.

 

It’s not just a matter of degrees and qualifications. A qualified expert who sticks

his neck out beyond a reasonable scientific range will find himself out of the game.

 

RULE NO. 5: THE IPSE DIXIT EXCLUSION

 

One of the most troubling trends in forensic science over the last twenty years has

been the expert who boldly declares “It’s true because I say it is.” In a loose Latin

translation, an “ipse dixit” opinion is one in which the expert simply declares, based

almost solely upon his credentials and brass, that his analysis is correct. He ignores the

scientific method, the peer-reviewed literature, the published test results, and the accepted

studies, substituting his own unaided judgment. This is the quintessential “junk science”

opinion.

 

In Ortiz-Semprit v. Coleman Co., Inc., 301 F. Supp. 2d 116 (D.P.R. 2004), the

plaintiff’s fire expert claimed that an electrostatic discharge from a generator

manufactured by the defendant caused a fire. In classic arrogant expert form, he failed to

inspect the generator or the scene; he did not interview the plaintiffs; he ran no tests; he

compared no exemplar products; and he could not determine if the National Fire Code

standards upon which he relied were supported by the evidence or not. He had no factual

information regarding the happening of the accident, performed no tests or experiments,

relied upon no published literature or studies, and could not validate his reasoning.

Excluding his opinions, the Court found his lack of knowledge and preparation to be

“disturbing.”

 

And yet, this is the standard testimony that we had to fight no more than 10 years

ago without Daubert. More often than not, if the expert was “qualified” in a basic sense,

his testimony came in, and we were left to test it with cross-examination. Judges curtly

replied, when we objected to such bushwhacking, that lack of scientific basis for opinions

“went to the weight of the evidence,” as if any lay juror would understand the difference.

This same attitude exists in some courts today; file your Daubert motions early, and hire

experts with the understanding that the other side may, too.

 

RULE NO. 6: POSSIBILITY IS NOT CAUSE; HIRE EXPERIENCED EXPERTS

 

How many times have you read a C&O report written by an expert that you’ve

never heard of before, and thought to yourself, “This guy sounds like he doesn’t know

what he’s talking about?” Key indicators of inexperienced fire experts are inappropriate

technical terminology (“The toasted wood extends outward from the heater-thingy in the

coffee maker”), unfamiliarity with pertinent standards (“NFP who?”), and lack of

understanding of the burden of proof. In Gross v. Daimler Chrysler Corp., (District of

Maryland, 2003), plaintiff’s C&O expert tried to duck his failure to determine the actual

cause of an automobile fire by expounding on the range of possible causes, including

electrical failures; by discussing at length how fuses and circuit breakers sometimes fail

to operate; putting those two generalizations together, the expert opined that electrical

failure was the “most likely scenario” to explain the fire. Conspicuously missing from

the expert’s testimony was any indication that he believed it to be correct to a “reasonable

degree of scientific probability,” or any similar standard.

 

The Court recognized the expert’s quackery for what it was – “pure speculation.”

The expert offered nothing more than a symposium on possible causes, and then without

any physical evidence to support his concept of a defect in any conductor, insulation or

over current protective device, he made the leap to cause without testing, experimentation

or application of the scientific method. With no tests, no experiments, no histories of

similar occurrences, and no consistent physical findings, the expert’s opinion is raw

guesswork, and inadmissible.

 

RULE NO. 7: EXPERTS MUST BE QUALIFIED TO PERFORM TESTS

 

If your case is likely to require testing (and most fire and explosion cases will

involve some tests), add “qualified to test” to your checklist. Courts have applied a

version of Daubert to the admissibility of tests performed by experts, requiring the tester

and the test to meet certain levels of scientific reliability before the results will be

admissible.

 

In The Perry Lumber Co., Inc. v. Durable Services, Inc. (667 N.W.2d 194, Neb.,

2003) the plaintiff’s expert opined that fiberglass insulation was not combustible, and

tried to introduce a test that he ran to prove the point. Ruling that a testing expert must be

competent to run the experiment, that an appropriate apparatus must be used, that the test

must be run fairly and honestly, and that the critical conditions and variables that existed

at the time of the accident must be fairly reproduced, the court excluded this particular

testimony.

 

When you expect to need to test, make certain that your expert has the technical

background to design an admissible testing protocol, testing experience and/or

credentials, a real laboratory (not half his garage or a corner of his basement, with a few

hand tools and a fire extinguisher on the wall), familiarity with ASTM, UL, ANSI and

other standards applicable to the product, the material and the test, the capability to film,

photograph, and otherwise document the test process and results, and the technical

background to explain the test and to defend the methodology from cross-examination.

 

RULE NO. 8: FAILURE TO TEST MAY BE THE END

 

Although the Daubert standards are meant to be flexible, and no single factor in

the analysis is considered definitive, failure to test a theory may be considered by some

courts to be fatal or near-fatal, leading to expert exclusion. In Garcia v. BRK Brands,

Inc., 266 F. Supp. 2d 566 (S.D. Tex. 2003), several persons were killed by carbon

monoxide, purportedly as a result of a malfunctioning heater. The plaintiff’s theory was

that smoke detectors manufactured by the defendant failed to alarm in a timely manner.

Amazingly, neither of two experts performed any documented tests of detectors of the

same model, under similar conditions. The limited tests that were performed were not

repeated, and so no error rate was determined. The court described the tests as

“rudimentary”; one of the experts conceded that his tests were conducted as “an

afterthought.” After describing a simple testing protocol that “any competent expert

could have performed” to determine if the detectors failed to alarm properly, the court

excluded the experts’ opinions, finding that they had failed to meet “even the most

lenient interpretation of scientific validation.”

 

The court put great weight on the obligation to test in order to scientifically

validate a working theory of defect and cause; if your expert is not prepared or qualified

to test his theory, expect scrutiny and possible exclusion.

 

RULE NO. 9: BEWARE THE CANNED EXPERT

 

Daubert ended the era of the generalized expert, especially in fire litigation. The

mechanical engineer or chemistry professor who wrote the same $250 canned C&O

report for dozens of fires he “investigated” for property insurers is probably out of

business, or soon will be. Not only must his expertise and education more closely match

the subject matter of his opinions, but the opinions themselves must actually be based

upon facts and scientific analysis.

 

In Smith v. Sherwin Williams Co., (E.D. Va. 2003), plaintiff tried to use a

chemical expert to establish that a lost can of spray paint contained the same

manufacturing defect in its metal shell as a specimen can purchased by the plaintiff,

leading to product leakage and ignition by a near-by appliance. The expert claimed that

he could draw an inference that, since the plaintiff bought both cans at the same time, and

since he found the surviving can to be “defective,” that the incident can must have

contained the same defect.

 

The Court made short work of this slight of hand; it classified the expert’s

“inference” as “blatant speculation,” and then went on to observe that a chemical expert

is basically unqualified to offer opinions regarding metallurgical defects in a can. This

expert hit a reverse grand slam; his opinions were speculative; he lacked any scientific

basis for his opinions, and he was facially unqualified to even offer the ultimate opinion.

Good bye.

 

If the case is worth defending or pursuing, then it is worth finding a qualified

expert, in the proper discipline, and with the proper experience and knowledge. Don’t

get booted for failing to obtain the right expertise.

 

RULE 10: WORK WITH YOUR EXPERT

 

Even if you follow Rules 1-9, above, you may still find yourself staring at the

business end of a Daubert motion, if you do not work intensively with each of your

experts. The days are gone when you can dump a bunch of photos and a couple of

witness statements in the expert’s lap, and expect him to pull together a C&O opinion

that will survive written discovery, deposition and Daubert.

 

Think about the process. In every Federal Court, your expert will be required to

reveal, in substantial detail, his opinions, the factual basis for his opinions, his

qualifications, his publications, and his testimonial history for the last 10 years. In some

courts, he may be required to provide a comprehensive signed report, detailing each step

of his investigation, analysis and opinions; most states that require such reports will not

allow the expert to offer testimony that is not fully developed in the report. Before your

opponent has even deposed your expert, he has a pretty good idea of where he is

vulnerable.

 

But there is more. Before the deposition, your opponent will search the internet,

do a variety of literature searches, buy expert searches from data base search companies,

contact leads developed through this work, gather deposition and trial transcripts from

other cases, and generally build a “book” on your expert. He will know about most of

your expert’s prior testimony; he will know about his personal and professional life; and

he will definitely know if he has been subject to a Daubert-based exclusion in another

case.

 

Then comes the deposition. There is almost no protection for an expert witness in

a deposition. He must answer almost every question that he is asked. And through the

magic of computer-based transcript searching, every answer he gives will be precisely

compared with every answer he ever gave to a similar question. No place to run, no

place to hide.

 

Do you ever ask your potential C&O experts about their Daubert history? You

should. A prior Daubert exclusion is a road map to a similar exclusion in your case. All

of the pleadings, motions, oppositions, deposition transcripts and related paper is

available, usually in electronic form. Your opponent will have it. You should too, before

you commit to this expert.

 

A few random suggestions for working with your experts, aimed at avoiding a Daubert

exclusion:

 

A. Before you retain him, thoroughly review his resume, point-by-point, and get

copies of all back-up documents; make sure he is who he says he is; do not

assume anything; review his Daubert history in detail; get a full copy of his

testimonial history; contact his last 5-10 clients, and review his performance

and qualifications with them in detail; have there been changes in his CV?

Why? Do your own Google search; and meet him face-to-face.

 

B. Do a complete face-to-face case review, with the client, counsel and the

expert; this is his baseline factual foundation; omit nothing, good or bad;

make sure he gets complete, legible copies, of the highest quality; get photo

enlargements/enhancements, no photocopies, cropped prints or 3 x 5 drugstore

reprints; if standards are involved, get him complete copies, of the proper

vintage; if a product is involved, find him one or several specimen units for

comparison and testing; do not scrimp here; without a proper factual

foundation, his opinions will be inadmissible.

 

C. Investigate, including the scene. An expert without personal knowledge is an

easy target. Get him to the scene, with a photographer and a videographer,

and any other appropriate back-up that he needs. Take a lot of pictures, and

enlarge them for more detailed examination. Document everything, even if

it’s not directly relevant; he must show scientific completeness and proper

methodology; follow NFPA 921. If there is physical evidence, do likewise,

with complete respect for non-spoliation.

 

D. Meet again, to discuss the results of the inspection, and any other completed

investigation. At this point, your expert will probably be in a position to form

a working hypothesis; make sure he labels it as such, NOT as “Opinion #1.”

He still needs to test his hypothesis by applying the scientific method, testing,

experimentation, consultation with literature and treatises, etc. Do not form

opinions prematurely; make sure he demonstrates independent scientific

judgment, and carefully excludes other causes by use of scientific

methodology. Resist the temptation for a written report – it’s too early.

 

E. Do not become a filter for information; the expert must conduct his own

process, and you cannot direct him away from certain evidence and toward

other; do not document your conversations and meetings – they may not be

privileged, and may have to be produced in discovery; do not insist on interim

reports or preliminary reports – they are powerful cross-examination tools.

Let him do his job, at a reasonable pace. Make sure he understands any new

facts that arise in discovery, and that he gets complete copies of all discovery

as the case proceeds.

 

F. When the deadlines are approaching, have him work with counsel to prepare

only what is necessary. Any extras beyond that required by the court are

freebies for the opposition. His job not, at this point, to educate; it is simply

to meet the court’s disclosure requirements. Do not take this process lightly;

it establishes the basic outline of his testimony, and a mistake here may

cripple your defense. You will not even reach a Daubert motion if you fail to

properly disclose expert opinions.

 

G. Prepare intensively for the deposition. Review everything, without exception,

except those items which, in the judgment of counsel, would be needlessly

exposed if reviewed in preparation for deposition. This is where your expert

can be damaged and set-up for Daubert exclusion, or where he can lay the

groundwork for a favorable Daubert result. Make sure he understands that,

and what Daubert requires. Have that conversation early and often. Crossexamine

your expert; chase him hard and long; the best expert slip-ups happen

in the last 30 minutes of an 8 hour deposition, when he’s tired and just wants

to go home; watch it.

 

Daubert exclusion is organic; it grows and changes every day with new cases across

the country. But the trend is still in favor of tighter requirements, stricter controls, and

less leeway for marginal experts and their opinions. You can still get favorable expert

testimony admitted; it simply requires more preparation, more thought, and more good

science. And skillful use of expert exclusion is a powerful (and perhaps deadly) weapon

in your arsenal.

 

Article by Frank Beckstein.

For more information on this and related topics, please contact Frank Beckstein of

Nelson, Kinder, Mosseau & Saturley, P.C. at (617)778-7500.

DAUBERT HAS RESULTED IN THE EXCLUSION OF “STANDARD”

EXPERTS IN FIRE, EXPLOSION AND RELATED PRODUCTS LIABILITY
CASES FOR A NUMBER OF REASONS.
 
DAUBERT IS FOCUSED ON ESTABLISHED AND DEMONSTRABLE
SCIENCE AND THE SCIENTIFIC METHOD, INCLUDING TESTING,
REPRODUCEABLE RESULTS, PUBLISHED SCIENTIFIC STUDIES, AND
WIDE-SCALE INSTITUTIONAL VERIFICATION OF THEORIES OF
DEFECT AND CAUSATION.
 
DAUBERT FAVORS THE ESTABLISHED SCIENTIFIC REALMS –
MECHANICAL ENGINEERING, CHEMICAL ENGINEERING, AND TO
SOME EXTENT, FIRE PROTECTION ENGINEERING.
 
C&O HAS TRADITIONALLY NOT BEEN A SCIENTIFIC DISCIPLINE; IT
HAS INSTEAD BEEN THE PLAYGROUND OF THE “OLD TIMER” AND
THE “FIRE SCENE ANALYST,” NEITHER OF WHOM IS LIKELY TO PASS
THE DAUBERT CHALLENGE UNLESS THEY ADOPT THE SCIENTIFIC
METHOD, AND DISPLAY THAT ADOPTION IN THEIR INVESTIGATIONS,
ANALYSES, REPORTS AND TESTIMONY.
 
THERE ARE SOME BASIC RULES THAT WE CAN EXTRACT FROM
RECENT CASES UNDER DAUBERT.
 
 
EXPERTS AND JUNK SCIENCE PRE-DAUBERT
Prior to 1993, an expert was whatever a judge said he was, and if an expert
witness passed muster with the judge, then any opinions that even faintly smelled of
scientific thought or technical knowledge were usually admissible. In fire litigation, this
usually meant that anyone with a fire service background, or a couple of years as a “fire
scene analyst” for an insurance company, or with any training in any field even remotely
associated with fire, could probably stand a decent chance of being allowed to testify as a
cause and origin expert. Certainly, in the minds of most judges, any of these folks
probably knew more about fire investigation than did the judge or the jurors; their
testimony had to be somewhat helpful, and helpfulness to the finder of fact was one of
the many indicia of admissibility under the Federal Rules of Evidence, and under many
state rules as well.
 
This should not have been too surprising to most of us. Since the surge in product
liability in the 1970’s and 1980’s, technical experts were spawning like frogs. There
wasn’t a technical subject in existence that didn’t need clarification before a jury, and
lapses in physical evidence could often be solved by “hypothetical questions” answered
by “experts.” Hired by lawyers and litigants, paid hourly without reference to the
outcome of the case, and able to move freely throughout the country without substantial
concern for anyone assembling a comprehensive listing of their testimony (or looking for
inconsistencies in that testimony), the “hired gun” was a creation of modern litigation.
If you were involved in fire litigation at that time, you can probably remember
some examples of the looseness that allowed fire experts to glibly solve fires from
photographs that had stumped the investigators who were on the scene. The “old
firefighter” was the predominant C&O expert, with 20 years in an engine company, 10 on
the arson squad, and an IAAI certification as his retirement bonus. With no concern for
the ramifications of his “opinions,” he freely called the cause of a fire from half a dozen
snapshots and the charred remains of a toaster oven, relying on such concepts as “a V
pattern always points to the source of the fire” and “beaded conductors indicate that the
fire started from a short in the power cord.” They often were able to miraculously find a
piece of physical evidence or an indicator that “conclusively” indicated the cause, even
when half the debris had been disposed of and half of what remained was ignored when
the photos were taken.
 
No offense to the Fire Service trained expert which has produced some very
resourceful and competent investigators, but there were no standards or systems in place
to separate the good from the bad, and no criteria available to determine whether the rules
being used to call a fire were meaningful, or just familiar. Six generations of firefighters,
learning the same erroneous C&O “rules” from each other as they pass through the
service, do not produce validity by seniority. And with very few exceptions, no one
checks on the technique of a young fire investigator except the old investigator, who
taught him the erroneous concepts to begin with.
 
 
Fire experts were not alone in this lack of standards to assure the validity of the
interpretive work that they did. In the Courts, there was a growing recognition that as the
topics of litigation became more technical, the need for real science and technical
knowledge became more acute. The watered-down science being offered in the
courtrooms was not keeping pace with the increasing complexity of the medical and
scientific issues involved in trials. We were flooded with “junk science,” shorthand
pseudo-science that passed for the real thing, and was more easily “adapted” by
professional experts to illustrate their opinions (but often without regard for scientific
accuracy).
 
THE JUNK SCIENCE REVOLT
In 1991, Peter Huber, an engineer/lawyer, released Galileo’s Revenge: Junk
Science in the Courtroom – pointing out the huge gap that had opened up between real
science and courtroom science. The trend toward reform was starting to roll.
By the early 1990’s, there was a real push on in the Courts to improve the
accuracy and validity of the scientific and technical information provided by experts.
Rules regarding the general admissibility of expert evidence were tightened, but it was
not enough. The Courts realized that they had to address the key issue – somebody had
to make a threshold determination that an “expert” was really an “expert,” and that the
opinion testimony that an expert was offering was based upon valid scientific
methodology.
 
In 1993, the U.S. Supreme Court decided Daubert v. Merrel Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The paper that has been consumed by
articles written on this decision would fill this room several times over. But in very
simplified terms, Daubertput the judges in charge of deciding, sometimes before a trial
even starts, whether an expert is qualified to testify, and if so, whether the scientific or
technical opinion testimony that he wants to supply at trial is based upon known facts,
derived scientifically, and applicable to the issues in the case, and therefore of value to
the jury. If the answer is “no,” then very often, that’s the end of the case. In most
Federal courts, and in many state courts, experts and their testimony must be disclosed by
a date certain. If that testimony is disclosed, and is then barred as the result of a Daubertbased
challenge, there will often be no opportunity to go out and find another expert.
And in most products and fire litigation, a party with no expert will be unable to carry
their burden of proof. Courts recognize this shortfall, and often dismiss such cases when
there is no likelihood that they can succeed at trial.
 
Daubert, then, has become a weapon of choice for many defendants (and some
plaintiffs) in fire litigation. Get your opponent to commit to a particular theory of defect
and causation, usually through interrogatories and depositions; get that same opponent to
commit to particular identified experts, and their opinions (usually required by a date
certain under Court rules and scheduling orders); depose the expert after the disclosure of
his opinions, and show that he lacks significant qualifications, lacks factual foundations
for his opinions, or failed to use a scientific process to reach his opinions; and after the
expert’s testimony is barred or restricted under Daubert, move for summary judgment,
because the plaintiff can no longer prove an essential element of his case. No jury ever
gets to see the case, and you cut off the greatest uncertainty of litigation.
 
The Courts now refer to this role of judges as scientific monitors as the
“gatekeeper role.” If the expert or his opinions don’t pass muster, the gate stays closed.
Please bear in mind that Daubertdoes not make the judge decide whether the
ultimate opinions of the expert are valid or invalid. The focus is on credentials of the
expert, the factual basis for the opinions, and, most significantly, on the validity of the
methodology used by the expert to reach the opinions. Novel scientific theories are not
automatically excluded, as long as they are advanced by qualified people, raised because
the facts of the case suggest them, and validated by the application of the scientific
method. The tests used by the judge are flexible, and can include such issues as general
acceptance in the relevant scientific community, known error rate, testing results, peer
review, and the existence of standards applicable to the process. The more validating
factors that exist, the greater the likelihood that the testimony will be admitted.
Similarly, the absence of a Ph.D. does not disqualify an expert; witnesses with
little formal education but substantial work experience, on-the-job training and
demonstrated command of the subject matter may qualify just as easily as a college
professor. After Daubertcame Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149,
119 S. Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). One of the basic rulings in Kumho Tire
was the extension of the Daubertanalysis to experts other than scientists; the opinion
testimony of expert accountants, tire changers and even cause and origin experts must
undergo the same analysis, and meet the same standards. These folks would be judged
upon the scientific reliability of their accumulated experience and their application of
scientific methodology, not upon possession of a particular academic degree.
 
PICKING A C&O EXPERT POST-DAUBERT
For those of us who have to select experts under the pressure of a recent fire or
explosion event, this added a new concern to the checklist of things to think about before
you make a phone call looking for a C&O member of your expert team. We always had
to think about availability, resources, experience, appearance, testimonial capability, local
contacts, and rates; now we also had to think about whether this expert, when we got
down to expert disclosure in the litigation process, would meet or exceed the Daubert
analysis, or whether the other side was going to be able to bounce him, leaving us bare
and perhaps dead in the water.
 
So what can we do to assure that the C&O experts that we select will pass muster
under Daubert? What general rules can we try to assemble and use, to reduce the
chances that the experts we pick today will be allowed to testify in a year or two? One
possible source of such rules is to look at what has happened in cases that have been
reviewed on appeal; this gives us some indication of what higher courts are demanding.
 
Please bear in mind that the use and application of Daubertis not uniform throughout the
country. At the state court level, there are endless variations, but some general themes
can be found. In the Federal courts, there is greater uniformity, which is more helpful if
you have a Federal case (and this analysis may be another reason to choose removal to
Federal Court if you have the option at the outset of your case – ask your defense counsel
to include it in the decision-making process.) Daubertrules these issues in the Federal
Court system; check with your local counsel if you are dealing with a state court claim.
From recent decisions across the country that specifically apply Daubert-based
analysis, we can extract some basic rules that help us understand some of the issues that
we should consider when we hire C&O experts.
 
RULE NO. 1: MAKE SURE THE EXPERTISE MATCHES THE ISSUE
In Brazier v. Hasbro, Inc., a 2004 decision in the Southern District of New York,
a youngster was badly injured when he ate a small toy ball. One of the plaintiff’s experts,
an extensively qualified toy design expert, offered an opinion that the child was trying to
“free” or “hatch” an action figure that was embedded in the middle of the clear plastic
ball, blaming the toy manufacturer for creating an attractive hazard that children were
likely to try to chew. On the defendant’s Daubertmotion, the Court (applying Federal
evidence law) found that the expert was unqualified to offer this particular opinion.
Although the witness had 35 years of experience in engineering and toy design, he had no
expertise in child psychology or other special qualifications in determining the minor’s
personal motivation. While he had an impressive resume on closely related areas of
expertise, he was not an expert on this particular issue. His opinion was based upon
speculation and conjecture, not scientific analysis; his opinion was excluded, and the
plaintiff lost.
 
Speculation and conjecture” are magic words in Daubertcases. If you want to
attack the factual basis of an expert’s theory, these are the arguments that you want the
judge to adopt. You must show that the expert’s leap from some facts to an extrapolated
opinion is not the result of science, but nothing more than an educated guess, dressed up
in scientific terminology. A pig in fancy clothes is still a pig, not a princess.
If your theory of cause includes electrical issues, get an electrical engineer or an
electrician with real fire experience. If it includes spontaneous combustion, get a chemist
with sufficient expertise to explain the exothermic reaction that occurred in the materials
involved. Do not rely on generalists, or those without the necessary level of education,
training and experience.
 
RULE NO. 2: YOU MAY NEED A TEAM
The plaintiff in McIlhenney v. Intermatic Inc., a 2004 state court decision in
Delaware, challenged several of the defendant’s experts in a fire case purportedly caused
by a malfunctioning set of low voltage lights. Repeatedly, the plaintiff claimed that
various defense experts (including an MIT-educated PhD in electrical engineering and an
engineer formerly employed by the manufacturer with extensive knowledge of the design
and manufacture of the lights) were not qualified to testify as experts because they were
not experts in “fire science.” The Court made short work of these objections, pointing
out that neither was being used as an expert in fire, but rather each would testify
regarding the particular design, electrical behavior, and heat-producing capability of the
product. Ironically, the only expert offered by the defendant who had a degree in “fire
science” was also challenged by the plaintiff as unqualified because he was not an
engineer; this challenge also failed, given the fact that he was not analyzing the design
and performance of the product, but was rather analyzing the fire, given the testimony of
the engineers regarding the product.
 
The bottom line – you may need different experts for different areas of expertise,
and perhaps a coordinated team of experts whose testimony builds upon each others areas
of knowledge. There is no “magic degree” or “magic certification.” Fire analysis is
actually a conglomeration of sciences, and you have to break it down into its various
components and match those components with the appropriate experts. Once you have
isolated the real scientific disciplines involved, get the highest level of expertise available
you are going to need it.
 
RULE NO. 3: SOME OLD TIMERS MAY STILL QUALIFY
In George v. Ronco Inventions, LLC (D. Kan. 2004), the defendant used many of
the common arguments to attack a generalist fire expert used by the plaintiff. The
defendant claimed that the expert was led to a particular product, lacked appropriate
education, failed to measure depth of char, etc. The plaintiffs countered with evidence
that the expert had extensive on-the-job training and experience, followed fire
investigation standards (NFPA 921), and documented his factual findings with extensive
photos and a lengthy report. The court then reviewed his reasoning and analysis, and
specifically found “no significant gaps in deductions,” nor any other basis to exclude the
opinions as unreliable.
 
In summary, vocationally trained C&O experts may still make the cut if the court
can find objective evidence of careful factual investigation and logical analysis, mixed in
with some widely accepted standards for fire scene investigation. If the old timer sticks
to the routine fire, documents the scene, follows 921, and explains his conclusions in a
thoroughly documented and logical manner, he can probably survive.
 
If you are opposing such an expert, try to raise the level of the analysis by hiring
engineers, who can distinguish their opinions with scientific analysis that is outside of the
opponent’s expert’s reach, and may persuade the judge that the old-timer is playing in a
game where he doesn’t belong. One last suggestion: if the weaknesses in the other side’s
expert are not significant, you may want to hold it for trial. Everything you disclose in a
Daubertmotion is a preview for the opponent, and you lose all chance of surprise in your
cross-examination.
 
RULE NO. 4: EVEN A DEGREE FROM OXFORD WON’T FIX BAD SCIENCE
The plaintiff’s C&O expert in Truck Ins. Exchange v. MagneTek, Inc., 360 F.3d
1206 (10th Cir. 2004), despite a physics degree from Oxford and 20 years of fire
investigation experience, was excluded in this Colorado case when he opined that
pyrolosis from fluorescent light ballasts eventually caused wood in a restaurant ceiling to
ignite at temperatures below 300 degrees F. Stellar qualifications could not save him; he
relied upon a theory that was widely considered to be scientifically unproven and
inadequately tested. Citing a scientific article in partial support of some of his theories, he
failed to point out that the article was entitled "Pyrophoric Carbon: The Jury Is Still Out.”
The defendant and the judge read the whole article, recognized the shortcomings, and the
opinions were excluded. The Court decided that pyrolosis was not yet considered to be a
sufficiently reliable scientific theory, and excluded the witness’ testimony.
 
With the educated expert out, the defendant then moved to exclude the plaintiff’s
fire service witness, who had adopted the pyrolosis argument. Again, qualifications were
not the issue. However, this witness agreed that he worked under the umbrella of NFPA
921, and was required to support his opinion regarding cause by determining the ignition
temperature of the first material ignited, and then by showing that the temperatures
produced by the “cause,” i.e., the ballast, were sufficient to cause combustion. With
pyrolosis excluded, the operating temperature of the ballast was well below the known
ignition temperature of wood. The old timer’s theory was scientifically untenable under
his own standards, and excluded as unreliable.
 
It’s not just a matter of degrees and qualifications. A qualified expert who sticks
his neck out beyond a reasonable scientific range will find himself out of the game.
 
RULE NO. 5: THE IPSE DIXIT EXCLUSION
One of the most troubling trends in forensic science over the last twenty years has
been the expert who boldly declares “It’s true because I say it is.” In a loose Latin
translation, an “ipse dixit” opinion is one in which the expert simply declares, based
almost solely upon his credentials and brass, that his analysis is correct. He ignores the
scientific method, the peer-reviewed literature, the published test results, and the accepted
studies, substituting his own unaided judgment. This is the quintessential “junk science”
opinion.
 
In Ortiz-Semprit v. Coleman Co., Inc., 301 F. Supp. 2d 116 (D.P.R. 2004), the
plaintiff’s fire expert claimed that an electrostatic discharge from a generator
manufactured by the defendant caused a fire. In classic arrogant expert form, he failed to
inspect the generator or the scene; he did not interview the plaintiffs; he ran no tests; he
compared no exemplar products; and he could not determine if the National Fire Code
standards upon which he relied were supported by the evidence or not. He had no factual
information regarding the happening of the accident, performed no tests or experiments,
relied upon no published literature or studies, and could not validate his reasoning.
Excluding his opinions, the Court found his lack of knowledge and preparation to be
“disturbing.”
 
And yet, this is the standard testimony that we had to fight no more than 10 years
ago without Daubert. More often than not, if the expert was “qualified” in a basic sense,
his testimony came in, and we were left to test it with cross-examination. Judges curtly
replied, when we objected to such bushwhacking, that lack of scientific basis for opinions
“went to the weight of the evidence,” as if any lay juror would understand the difference.
This same attitude exists in some courts today; file your Daubertmotions early, and hire
experts with the understanding that the other side may, too.
 
RULE NO. 6: POSSIBILITY IS NOT CAUSE; HIRE EXPERIENCED EXPERTS
How many times have you read a C&O report written by an expert that you’ve
never heard of before, and thought to yourself, “This guy sounds like he doesn’t know
what he’s talking about?” Key indicators of inexperienced fire experts are inappropriate
technical terminology (“The toasted wood extends outward from the heater-thingy in the
coffee maker”), unfamiliarity with pertinent standards (“NFP who?”), and lack of
understanding of the burden of proof. In Gross v. Daimler Chrysler Corp., (District of
Maryland, 2003), plaintiff’s C&O expert tried to duck his failure to determine the actual
cause of an automobile fire by expounding on the range of possible causes, including
electrical failures; by discussing at length how fuses and circuit breakers sometimes fail
to operate; putting those two generalizations together, the expert opined that electrical
failure was the “most likely scenario” to explain the fire. Conspicuously missing from
the expert’s testimony was any indication that he believed it to be correct to a “reasonable
degree of scientific probability,” or any similar standard.
 
The Court recognized the expert’s quackery for what it was – “pure speculation.”
The expert offered nothing more than a symposium on possible causes, and then without
any physical evidence to support his concept of a defect in any conductor, insulation or
over current protective device, he made the leap to cause without testing, experimentation
or application of the scientific method. With no tests, no experiments, no histories of
similar occurrences, and no consistent physical findings, the expert’s opinion is raw
guesswork, and inadmissible.
 
RULE NO. 7: EXPERTS MUST BE QUALIFIED TO PERFORM TESTS
If your case is likely to require testing (and most fire and explosion cases will
involve some tests), add “qualified to test” to your checklist. Courts have applied a
version of Daubertto the admissibility of tests performed by experts, requiring the tester
and the test to meet certain levels of scientific reliability before the results will be
admissible.
 
In The Perry Lumber Co., Inc. v. Durable Services, Inc. (667 N.W.2d 194, Neb.,
2003) the plaintiff’s expert opined that fiberglass insulation was not combustible, and
tried to introduce a test that he ran to prove the point. Ruling that a testing expert must be
competent to run the experiment, that an appropriate apparatus must be used, that the test
must be run fairly and honestly, and that the critical conditions and variables that existed
at the time of the accident must be fairly reproduced, the court excluded this particular
testimony.
 
When you expect to need to test, make certain that your expert has the technical
background to design an admissible testing protocol, testing experience and/or
credentials, a real laboratory (not half his garage or a corner of his basement, with a few
hand tools and a fire extinguisher on the wall), familiarity with ASTM, UL, ANSI and
other standards applicable to the product, the material and the test, the capability to film,
photograph, and otherwise document the test process and results, and the technical
background to explain the test and to defend the methodology from cross-examination.
 
RULE NO. 8: FAILURE TO TEST MAY BE THE END
Although the Daubertstandards are meant to be flexible, and no single factor in
the analysis is considered definitive, failure to test a theory may be considered by some
courts to be fatal or near-fatal, leading to expert exclusion. In Garcia v. BRK Brands,
Inc., 266 F. Supp. 2d 566 (S.D. Tex. 2003), several persons were killed by carbon
monoxide, purportedly as a result of a malfunctioning heater. The plaintiff’s theory was
that smoke detectors manufactured by the defendant failed to alarm in a timely manner.
Amazingly, neither of two experts performed any documented tests of detectors of the
same model, under similar conditions. The limited tests that were performed were not
repeated, and so no error rate was determined. The court described the tests as
“rudimentary”; one of the experts conceded that his tests were conducted as “an
afterthought.” After describing a simple testing protocol that “any competent expert
could have performed” to determine if the detectors failed to alarm properly, the court
excluded the experts’ opinions, finding that they had failed to meet “even the most
lenient interpretation of scientific validation.”
 
The court put great weight on the obligation to test in order to scientifically
validate a working theory of defect and cause; if your expert is not prepared or qualified
to test his theory, expect scrutiny and possible exclusion.
 
RULE NO. 9: BEWARE THE CANNED EXPERT
Daubertended the era of the generalized expert, especially in fire litigation. The
mechanical engineer or chemistry professor who wrote the same $250 canned C&O
report for dozens of fires he “investigated” for property insurers is probably out of
business, or soon will be. Not only must his expertise and education more closely match
the subject matter of his opinions, but the opinions themselves must actually be based
upon facts and scientific analysis.
 
In Smith v. Sherwin Williams Co., (E.D. Va. 2003), plaintiff tried to use a
chemical expert to establish that a lost can of spray paint contained the same
manufacturing defect in its metal shell as a specimen can purchased by the plaintiff,
leading to product leakage and ignition by a near-by appliance. The expert claimed that
he could draw an inference that, since the plaintiff bought both cans at the same time, and
since he found the surviving can to be “defective,” that the incident can must have
contained the same defect.
 
The Court made short work of this slight of hand; it classified the expert’s
“inference” as “blatant speculation,” and then went on to observe that a chemical expert
is basically unqualified to offer opinions regarding metallurgical defects in a can. This
expert hit a reverse grand slam; his opinions were speculative; he lacked any scientific
basis for his opinions, and he was facially unqualified to even offer the ultimate opinion.
Good bye.
 
If the case is worth defending or pursuing, then it is worth finding a qualified
expert, in the proper discipline, and with the proper experience and knowledge. Don’t
get booted for failing to obtain the right expertise.
 
RULE 10: WORK WITH YOUR EXPERT
Even if you follow Rules 1-9, above, you may still find yourself staring at the
business end of a Daubertmotion, if you do not work intensively with each of your
experts. The days are gone when you can dump a bunch of photos and a couple of
witness statements in the expert’s lap, and expect him to pull together a C&O opinion
that will survive written discovery, deposition and Daubert.
 
Think about the process. In every Federal Court, your expert will be required to
reveal, in substantial detail, his opinions, the factual basis for his opinions, his
qualifications, his publications, and his testimonial history for the last 10 years. In some
courts, he may be required to provide a comprehensive signed report, detailing each step
of his investigation, analysis and opinions; most states that require such reports will not
allow the expert to offer testimony that is not fully developed in the report. Before your
opponent has even deposed your expert, he has a pretty good idea of where he is
vulnerable.
 
But there is more. Before the deposition, your opponent will search the internet,
do a variety of literature searches, buy expert searches from data base search companies,
contact leads developed through this work, gather deposition and trial transcripts from
other cases, and generally build a “book” on your expert. He will know about most of
your expert’s prior testimony; he will know about his personal and professional life; and
he will definitely know if he has been subject to a Daubert-based exclusion in another
case.
 
Then comes the deposition. There is almost no protection for an expert witness in
a deposition. He must answer almost every question that he is asked. And through the
magic of computer-based transcript searching, every answer he gives will be precisely
compared with every answer he ever gave to a similar question. No place to run, no
place to hide.
 
Do you ever ask your potential C&O experts about their Dauberthistory? You
should. A prior Daubertexclusion is a road map to a similar exclusion in your case. All
of the pleadings, motions, oppositions, deposition transcripts and related paper is
available, usually in electronic form. Your opponent will have it. You should too, before
you commit to this expert.
 
A few random suggestions for working with your experts, aimed at avoiding a Daubert
exclusion:
 
A. Before you retain him, thoroughly review his resume, point-by-point, and get
copies of all back-up documents; make sure he is who he says he is; do not
assume anything; review his Dauberthistory in detail; get a full copy of his
testimonial history; contact his last 5-10 clients, and review his performance
and qualifications with them in detail; have there been changes in his CV?
Why? Do your own Google search; and meet him face-to-face.
 
B. Do a complete face-to-face case review, with the client, counsel and the
expert; this is his baseline factual foundation; omit nothing, good or bad;
make sure he gets complete, legible copies, of the highest quality; get photo
enlargements/enhancements, no photocopies, cropped prints or 3 x 5 drugstore
reprints; if standards are involved, get him complete copies, of the proper
vintage; if a product is involved, find him one or several specimen units for
comparison and testing; do not scrimp here; without a proper factual
foundation, his opinions will be inadmissible.
 
C. Investigate, including the scene. An expert without personal knowledge is an
easy target. Get him to the scene, with a photographer and a videographer,
and any other appropriate back-up that he needs. Take a lot of pictures, and
enlarge them for more detailed examination. Document everything, even if
it’s not directly relevant; he must show scientific completeness and proper
methodology; follow NFPA 921. If there is physical evidence, do likewise,
with complete respect for non-spoliation.
 
D. Meet again, to discuss the results of the inspection, and any other completed
investigation. At this point, your expert will probably be in a position to form
a working hypothesis; make sure he labels it as such, NOT as “Opinion #1.”
He still needs to test his hypothesis by applying the scientific method, testing,
experimentation, consultation with literature and treatises, etc. Do not form
opinions prematurely; make sure he demonstrates independent scientific
judgment, and carefully excludes other causes by use of scientific
methodology. Resist the temptation for a written report – it’s too early.
 
E. Do not become a filter for information; the expert must conduct his own
process, and you cannot direct him away from certain evidence and toward
other; do not document your conversations and meetings – they may not be
privileged, and may have to be produced in discovery; do not insist on interim
reports or preliminary reports – they are powerful cross-examination tools.
Let him do his job, at a reasonable pace. Make sure he understands any new
facts that arise in discovery, and that he gets complete copies of all discovery
as the case proceeds.
 
F. When the deadlines are approaching, have him work with counsel to prepare
only what is necessary. Any extras beyond that required by the court are
freebies for the opposition. His job not, at this point, to educate; it is simply
to meet the court’s disclosure requirements. Do not take this process lightly;
it establishes the basic outline of his testimony, and a mistake here may
cripple your defense. You will not even reach a Daubertmotion if you fail to
properly disclose expert opinions.
 
G. Prepare intensively for the deposition. Review everything, without exception,
except those items which, in the judgment of counsel, would be needlessly
exposed if reviewed in preparation for deposition. This is where your expert
can be damaged and set-up for Daubertexclusion, or where he can lay the
groundwork for a favorable Daubertresult. Make sure he understands that,
and what Daubertrequires. Have that conversation early and often. Crossexamine
your expert; chase him hard and long; the best expert slip-ups happen
in the last 30 minutes of an 8 hour deposition, when he’s tired and just wants
to go home; watch it.
 
Daubertexclusion is organic; it grows and changes every day with new cases across
the country. But the trend is still in favor of tighter requirements, stricter controls, and
less leeway for marginal experts and their opinions. You can still get favorable expert
testimony admitted; it simply requires more preparation, more thought, and more good
science. And skillful use of expert exclusion is a powerful (and perhaps deadly) weapon
in your arsenal.
 
Article by Frank Beckstein.
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