Expert Testimony

Is Your Expert Qualified to Render the Opinions?

Posted by David Adelstein on April 24, 2016
Expert Testimony / Comments Off on Is Your Expert Qualified to Render the Opinions?

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You retained an expert witness.  You want the expert witness to serve as a testifying expert — to testify at trial to help support a claim or a defense.  But, is your expert qualified to render the opinions you want him/her to render?   Stated differently, does the expert have the expertise, knowledge, skill, education, training, or experience to render the opinion (as required by Florida Statute s. 90.702)?  This is crucial since if he/she does not, he/she will NOT be qualified as an expert witness.  Make sure the expert you retain is qualified to render the opinions you want him/her to render.  If not, you could wind up with an expert that either (a) is not allowed to testify or (b) testifies at trial which potentially results in a new trial due to an unqualified expert testifying.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Make Sure to Timely Raise Your Daubert Objection to Expert Testimony

Posted by David Adelstein on March 09, 2016
Evidence, Expert Testimony / Comments Off on Make Sure to Timely Raise Your Daubert Objection to Expert Testimony

 

If you are going to raise a Daubert objection or challenge (or request a Daubert hearing), you need to TIMELY do so before the expert witness testifies. A Daubert motion / challenge / hearing relates to the admissibility of an expert witness’ testimony. As you can imagine, this is an extremely important issue as many cases depend on expert witness testimony to support their burden of proof.

In Rojas v. Rodriguez, 41 Fla.L.Weekly D423a (Fla. 3d DCA 2016), a defendant raised a Daubert objection post-verdict. The defendant was challenging the admissibility of the testimony of plaintiff’s neurosurgeon expert in requesting a new trial. The trial court granted the defendant’s motion. On appeal, the appellate court reversed ordering the reinstitution of the jury’s verdict because the defendant did NOT timely raise its Daubert objection:

Moreover, it was incumbent upon the defendant, as the challenging party, to timely raise a Daubert objection and request a hearing before the trial court. Given the trial court’s role as “gatekeeper” in the Daubert context, it stands to reason that such an objection must be timely raised to allow the trial court to properly perform its role:…

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Here, there was no timely Daubert objection, nor is there any indication that exceptional circumstances existed to merit consideration of the defendant’s untimely objection. As such, the trial court erred in granting the defendant’s motion. Accordingly, we reverse the order on appeal and remand so that the trial court may reinstitute the jury’s verdict. Because the defendant failed to make a timely Daubert objection, we do not reach the issue of whether the neurosurgeon’s testimony would have been admissible under Daubert.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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You Cannot Contradict Testimony with Affidavit Testimony in Response to Summary Judgment

Posted by David Adelstein on January 29, 2016
Appeal, Expert Testimony / Comments Off on You Cannot Contradict Testimony with Affidavit Testimony in Response to Summary Judgment

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Preparing expert witnesses for deposition is vital. To this end, working with an expert witness to ensure their expert opinions fit within the context and theme of your case and burden of proof is equally vital. Not doing so can be fatal to your case. This can lead to unprepared testimony or opinions that may appear innocuous but are in fact detrimental to your claims.

For example, in the recent opinion in Lesnik v. Duval Ford, LLC, 41 Fla.L.Weekly D281a (Fla. 1st DCA 2016), the plaintiff’s expert witness was deposed. The case involved a single vehicle accident where the plaintiff asserted claims against the dealership he purchased his used vehicle from. During deposition, the expert was asked specific questions and answered that he had no expert opinions as to those questions/issues. The Defendants filed a motion for summary judgment. In response to the motion, the plaintiff filed an affidavit of his expert. The problem, however, was that the expert rendered opinions in the affidavit that contradicted with his deposition testimony. In other words, he rendered opinions in the affidavit as to issues he previously testified that he had no expert opinions on. The trial court struck the affidavit based on the law that “a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony.” Lesnik, supra, quoting Ondo v. F. Gary Gieseke, P.A., 697 So. 2d 921, 923 (Fla. 4th DCA 1997). The appellate court affirmed (explaining that reviewing trial court’s order striking the expert’s affidavit was an abuse of discretion standard of review and the trial court acted within its discretion).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Experts Cannot Tell the Jury How to Decide the Case

Posted by David Adelstein on January 13, 2016
Expert Testimony / Comments Off on Experts Cannot Tell the Jury How to Decide the Case

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Previously, I discussed the employment litigation case of Mootry v. Bethune-Cookman University, Inc., 41 Fla. L. Weekly D146a (Fla. 5th DCA 2015) involving a terminated professor suing the University that fired him.   Check it out here. In this case, the University called an outside counsel as an expert employment attorney that advised it in the termination of the professor. The lawyer testified that in her expert opinion the University had cause to terminate the professor. The appellate court held it was error to admit this testimony because the testimony was essentially telling the jury how to decide the case, particularly, that the University did not breach the employment contract with the professor because it had authority to terminate his contract. “‘Witnesses will be prevented from expressing their conclusions when the opinion only tells the jury how to decide the case and does not help the jury to determine what occurred.” Mootry, supra, quoting Schneer v. Allstate Indem. Co., 767 So. 2d 485, 488 (Fla. 3d DCA 2000).

In another example, Schneer, the underlying issue in the case was whether the insured perpetrated a fraud in submitting an insurance claim. The insured had an expert that was going to testify that no fraud had been committed by the insured. This expert testimony was properly excluded since “it had the effect of advising the jury how to decide this case [i.e., that no fraud had been committed by the insured], rather than assisting it in determining what had occurred.”  Schneer, supra

Considering and utilizing expert testimony is an important part of civil litigation.  Courts are the gatekeepers when it comes to admitting expert testimony so make sure you understand the expert opinion you are seeking and the admissibility requirements for that opinion.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Showing Bias to Impeach a Witness such as an Expert

Posted by David Adelstein on September 19, 2015
Expert Testimony / Comments Off on Showing Bias to Impeach a Witness such as an Expert

 

If you have an expert testifying on your behalf at trial, the opposing party will ask how much you or your agents have paid the expert for his testimony.   Why? Because this shows bias, right? The sentiment is that the expert is a hired gun being paid for his testimony; although, this cuts both ways in a case where both parties have a testifying expert.

In the personal injury case of Vazquez v. Martinez, 40 Fla. L. Weekly D2170a (Fla. 5th DCA 2015), the plaintiff showed that the defendant’s expert witnesses were paid almost $700,000 by the defendant or her agents. The Fifth District Court of Appeals found this to be appropriate to show the bias of the experts:

A party may attack the credibility of a witness by exposing a potential bias. A jury is entitled to know the extent of the financial connection between the party and the witness, and the cumulative amount a party has paid an expert during their relationship. Therefore, Florida courts allow extensive discovery of financial information to assist counsel in impeaching examining physicians and other experts by demonstrating that the expert has economic ties to the insurance company or defense law firm.

Vazquez, supra (internal citations and quotations omitted).

This is supported by Florida Statute s. 90.608(2) that allows a party to impeach (or attack the credibility of a witness such as an expert) by showing that the testifying expert or witness is biased.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Your Reasonable Attorney’s Fees Expert May be a Taxable Cost

Posted by David Adelstein on September 17, 2015
Expert Testimony / Comments Off on Your Reasonable Attorney’s Fees Expert May be a Taxable Cost

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I am the prevailing party and I am entitled to recover my attorney’s fees from the opposing party! Now what?

If you are unable to come to an agreement with the opposing side regarding the amount of attorney’s fees you incurred, then you need to have an evidentiary hearing for the court to determine your reasonable attorney’s fees. This requires your attorney to testify as to the rates and the number of hours expended on the matter. This also importantly requires to you to have an expert testify as to the reasonableness of the attorney’s fees you incurred. See Jaffe v. In re: Guardianship of Jaffe, 147 So.3d 578, 581 (Fla. 3d DCA 2014) (explaining that proving reasonable attorney’s fees must be supported by expert witness testimony). This expert is nothing more than another attorney that testifies that the rates are reasonable and the number of hours expended was reasonable.   This expert is known as a reasonable attorney’s fees expert.

The good news is that this reasonable attorney’s fees expert may be taxed as a cost against the opposing party. Travieso v. Travieso, 474 So.2d 1184 (Fla. 1985); accord Jaffe, 147 So.3d 578; Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 1999).

More than likely, a court is going to tax your reasonable attorney’s fees expert as a cost against the opposing party. Knowing this, a so-called losing party should try to avoid the evidentiary attorney’s fees hearing by coming to an agreement with the prevailing party as to the reasonable attorney’s fees.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Expert Witnesses can Rely on Hearsay….But…

Posted by David Adelstein on September 12, 2015
Evidence, Expert Testimony / Comments Off on Expert Witnesses can Rely on Hearsay….But…

Expert witnesses can rely on hearsay (or inadmissible evidence) in arriving at their expert opinions subject to exceptions set forth below. Vega v. State Farm Mut. Automobile, 45 So.3d 43 (Fla. 5th DCA 2010) (expert automobile appraiser was entitled to rely on other persons knowledge in vintage automobiles to arrive at estimated value of vintage vehicle); Houghton v. Bond, 680 So.2d 514 (Fla. 1st DCA 1996) (expert allowed to rely on inadmissible study to arrive at expert opinion).

Indeed, Florida Statute s. 90.704 supports this point by stating:

If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

The key, as set forth in s. 90.704, is that the inadmissible hearsay the expert relies on must be the type reasonably relied upon by experts in the field. See Vega, 45 So.3d 43.

Yet, while the expert can rely on hearsay to arrive at their opinion, the expert cannot (a) serve as a conduit for purposes of getting into evidence otherwise inadmissible hearsay or (b) use hearsay to merely bolster the credibility of their opinion by testifying that a particular writing or other expert agrees with the expert’s opinion. See Duss v. Garcia, 80 So.3d 358, 364 (Fla. 1st DCA 2012); see also Linn v. Fossum, 946 So.2d 1032 (Fla. 2006) (expert not able to testify that he consulted with other experts as it effectively bolsters the credibility of the expert’s opinion based on hearsay); Department of Corrections, State of Fla. v. Williams, 549 So.2d 1071 (Fla. 5th DCA 1989) (while expert could rely on affidavit in forming opinion, the affidavit was not admissible to allow the expert to serve as a conduit to introduce inadmissible evidence).

Typically, if an expert’s opinion is based solely on inadmissible evidence, there is a strong argument that the expert’s opinion is simply a conduit to introduce otherwise inadmissible hearsay. See Maklakiewicz v. Berton, 652 So.2d 1208 (Fla. 3d DCA 2009) (officer which served as accident reconstruction expert was not allowed to rely exclusively on hearsay to render expert opinion).

Expert opinion testimony is important in many disputes.  Parties rely on experts to help support their positions or theories of the case.  Hence, knowing what an expert can and cannot rely on in forming their expert opinion plays an important part of the trial process.

P.S.  Wasn’t My Cousin Vinny a fantastic movie?  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Using Deposition of Expert Witness at Trial and Reading Portion of Deposition Transcript

Posted by David Adelstein on July 24, 2015
Depositions, Evidence, Expert Testimony / Comments Off on Using Deposition of Expert Witness at Trial and Reading Portion of Deposition Transcript

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Expert witnesses are an important part of civil trials (and criminal trials).   Parties utilize expert witnesses at trial to render expert opinions. But, a testifying expert does not need to be at trial live (or, in person) to render an expert opinion.  

Florida Rule of Civil Procedure 1.330(a)(3) provides in pertinent part: “The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:…(F) the witness is an expert or skilled witness.”

Similarly, Florida Rule of Civil Procedure 1.390(b) provides: “The testimony of an expert…witness may be taken at any time before the trial in accordance with the rules for taking depositions and may be used at trial, regardless of the place of residence of the witness.”

This means a party can utilize the deposition of an expert instead of calling the expert to the witness stand. The deposition is utilized by reading portions of the deposition transcript or offering portions of a videotaped deposition.

It is common for portions of depositions to be read to the jury (or, shown to the jury in a videotaped deposition). In this regard, Florida Rule of Civil Procedure 1.330(a)(4) states: “If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts.”

This rule is designed to prevent a party from taking a deposition out of context and misleading the jury by reading or showing only select portions of the deposition versus allowing the jury to hear the “whole truth.” See Kaminsky v. Travelers Indem. Co., 474 So.2d 287, 288 (Fla. 3d DCA 1985) (“[W]here one party reads selected and prejudicial portions of the other party’s deposition for impeachment, it is error to prohibit opposing counsel from reading other portions of that same deposition in an effort to demonstrate the “whole truth.”); see also Mitchell v. Bonnell, 770 So.2d 1292, 1294 (Fla. 3d DCA 2000) (“We hold that Mitchell [plaintiff] had the right to present additional portions of Dr. Gordon’s deposition for the purpose of explaining, clarifying, and/or placing in context those limited sections presented by the defense by way of direct examination. The court’s failure to allow this was an abuse of discretion.’); Eggers v. Narron, 254 So.2d 382, 385 (Fla. 4th DCA 1971) (“When the plaintiff in this case elected to introduce into evidence a part of Eggers’ deposition, each of the defendants thereupon became entitled under this provision of subsection (4) of the rule to offer into evidence during the defendants’ case any other parts of Eggers’ deposition.”).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Expert Opinion Testimony and the Standard of Appellate Review

Posted by David Adelstein on January 11, 2015
Appeal, Expert Testimony, Standard of Review / Comments Off on Expert Opinion Testimony and the Standard of Appellate Review

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Previously, I discussed expert opinion testimony and the Daubert gatekeeping test employed by trial courts to determine the admissibility of the expert testimony. But, there is much more to expert opinion testimony. 

An expert witness is NOT allowed to serve as a conduit for inadmissible hearsay so that a party is using an expert witness to simply get in testimony/evidence that is otherwise inadmissible. Doctors Co. v. State, Dept. of Ins., 940 So.2d 466, 470 (Fla. 1st DCA 2006) (“The rule is well established that if an expert is called merely as a conduit to place inadmissible evidence before the jury, the trial court appropriately exercises its discretion by excluding such evidence.”); accord Tolbert v. State, 114 So.3d 291, 294 (Fla. 4th DCA 2013) (internal quotation and citation omitted) (“Although an expert may rely on hearsay in reaching the expert’s opinion, an expert’s testimony may not merely be used as a conduit for the introduction of the otherwise inadmissible evidence.”)

Moreover, an expert is NOT permitted to bolster his/her credibility on direct examination by testifying that he/she relied on communications/consultations (hearsay) with other experts in order to reach his/her expert opinion. See Linn v. Fossum, 946 So.2d 1032 (Fla. 2006). Stated differently, an expert cannot bolster his/her credibility by testifying that a treatise, article, study, or colleague (e.g., hearsay) agrees with his/her opinion before the expert has been impeached on cross-examination. See Duss v. Garcia, 80 So.3d 358 (Fla. 1st DCA 2012).

What if the trial court allows or disallows expert testimony? In other words, what if the trial court grants a motion to strike an expert (or certain expert testimony) or denies a motion to strike an expert (or certain expert testimony)? 

“The standard of [appellate] review for trial court decisions concerning the qualifications of expert witnesses and the scope of their testimony is abuse of discretion.”   County of Volusia v. Kemp, 764 So.2d 770 (Fla. 5th 2000) (reversing final judgment because trial court erred in allowing expert opinion testimony). This means that a trial court’s acceptance of expert opinion testimony or rejection of expert opinion testimony will NOT be disturbed on appeal unless the trial court abused its discretion. Doctors Co., 940 So.2d 466 (finding the trial court did not abuse its discretion in disallowing expert testimony).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Expert Opinion Testimony and Understanding Daubert’s Gatekeeping Test

Posted by David Adelstein on January 10, 2015
Evidence, Expert Testimony / Comments Off on Expert Opinion Testimony and Understanding Daubert’s Gatekeeping Test

Expert opinion testimony

Expert opinion testimony is an important aspect of complex civil litigation. Expert testimony assists in proving or disproving liability and damages. A credible and persuasive expert can make the difference in a case and retaining experts, generating expert opinions, and the manner in which expert opinions are presented should not be taken lightly.

Regarding expert testimony, Florida Statute s. 90.702 provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.”

Not all expert opinion testimony is admissible. Courts are required to employ a gatekeeping function to ensure that expert opinion testimony is reliable before that testimony is admissible. This way unreliable expert testimony is not considered by the jury.

DAUBERT

 

Florida courts now apply what has been referred to as the Daubert test to determine the admissibility of ALL expert testimony. See Perez v. Bell South Telecommunications, Inc., 138 So.3d 492 (Fla. 3d DCA 2014). This test arose out of the United States Supreme Court’s decision in Daubert v. Merrell Dow Phamaceuticals, Inc., 509 U.S. 579 (1993) and has been the gatekeeping test applied to expert testimony in federal courts.   This Daubert test forms the basis of a court’s gatekeeping function regarding the admissibility of RELIABLE expert opinion testimony.

How does a party offering expert opinion testimony satisfy its burden of establishing the reliability of the testimony? Parties need to know this because it is common for parties to file a (Daubert) motion attacking the reliability of another party’s expert testimony.

The Eleventh Circuit Court of Appeal explained:

“Courts must engage in a rigorous inquiry to determine whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.”

 Rink v. Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir. 2005) (quotation omitted).

(1) EXPERT QUALIFICATIONS

 

The first factor focuses on the qualifications of the expert. The expert needs to have some qualifications in order to render his/her expert opinion. Sometimes, however, parties hire experts with minimal qualifications. Federal courts have found that this goes to the expert’s credibility at trial and not the admissibility of the expert’s opinion. See Feliciano v. City of Miami Beach, 844 F.Supp.2d 1258 (S.D.Fla. 2012). This means that the other party can impeach the expert’s credibility at trial based on the expert’s minimal qualifications in order to create the appearance that the expert is not a credible or reliable witness.

(2) RELIABILITY OF EXPERT’S OPINION

 

The second factor focuses on the reliability of the expert’s opinion. Just because a witness is qualified to render an opinion does NOT mean the opinion is reliable. A judge has a degree of leeway in determining the reliability of the opinion by focusing on certain nonexclusive factors such as “(1) whether the expert’s methodology can be tested; (2) whether the expert’s scientific technique has been subjected to peer review and publication; (3) whether the method has a known rate of error; (4) whether the technique is generally accepted by the scientific community.” Rink, 400 F.3d at 1292.

This second factor is the crux of the Daubert test. See Fla. Stat. s. 90.702.   To this point, Florida’s Third District Court of Appeal in implementing the Daubert test as its gatekeeping function stated: “‘a key question to be answered’ in any Daubert inquiry is whether the proposed testimony qualifies as ‘scientific knowledge’ as it is understood and applied in the field of science to aid the trier of fact with information that actually can be or has been tested within the scientific method.” Perez, 138 So.3d at 498.

(3) EXPERT’S TESTIMONY ASSISTS JURY (TRIER OF FACT)

 

The third factor focuses on whether the expert testimony will assist the jury (trier of fact) in understanding an issue in the case. Thus, the expert testimony needs to be beyond the understanding of an average lay person and must not potentially confuse or mislead the jury. See U.S. v. Frazier, 387 F.3d 1244, 1262-63 (11th Cir. 2004). Also, the expert testimony must be more than what lawyers can argue in their closing arguments. Id. at 1263.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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