expert witness

Make Sure Your Expert’s Opinion is Reliable

Posted by David Adelstein on February 15, 2018
Uncategorized / Comments Off on Make Sure Your Expert’s Opinion is Reliable

I use expert witnesses in many cases.  Many.  Experts are an important part of cases, particularly complicated disputes where an expert opinion is absolutely warranted. 

But, as I have discussed in prior articles, an expert’s opinion needs to have a foundation of reliability, which is governed by the Daubert standard.  Without ensuring that an expert’s opinion is reliable, then parties will hire the Joe Blows of the world, pay them a minimal dollar amount, for an outrageous, unsupported, and unqualified opinion.  This, of course, provides no value.  Hence, the Daubert standard or test “requires that ‘[t]he testimony is based upon sufficient facts or data’; ‘[t]he testimony is the product of reliable principles and methods’; and ‘[t]he witness has applied the principles and methods reliably to the facts of the case.‘” Sanchez v. Body & Soul Retreat, LLC, 43 Fla. L. Weekly, 43 Fla. L. Weekly D359b (Fla. 4th DCA 2018) (quoting Fla. Stat. s. 90.702).  If the opinion is not reliable, it is not admissible.

In Sanchez, the defendants sought to use an expert doctor.  However, the doctor was going to render an opinion based on a twenty minute exam of the plaintiff.  He reviewed no pre-incident photographs of the plaintiff before an important event at-issue to determine the plaintiff’s pre-incident condition.  He further made improper assumptions and inferences based on his review of medical records; however, his assumptions were not factually supported by the medical records, i.e., they were speculative.  

Based on this, the plaintiff moved in limine to preclude this doctor’s expert testimony and the trial court granted the motion in limine, which was affirmed by the appellate court.  This meant the doctor was NOT able to render an expert opinion at trial, i.e., the defendant had no expert opinion to counter the plaintiff’s expert opinion.  His opinion did not pass Daubert’s test–the opinion was NOT based on any reliable methodology and was further based on factually unsupported assumptions.

If you are going to use an expert, make sure the expert is prepared and has the relevant information to render a reliable opinion.  This doesn’t mean the expert needs to review everything under the sun.  But, this does mean the expert needs to be in a position to render an opinion based on factually supported assumptions and reliable methodology. Paying an expert the bare minimum hoping that an expert can render an opinion on an elaborate or complicated issue can come back and backfire, as the defendant in this case learned. The expert may very well be the key to your claim or defense so take the time to ensure the opinion passes the smell test!!

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.

 

 

 

Tags: , , , , ,

Recoverability of Expert Witness Fees in Federal Court

Posted by David Adelstein on December 24, 2016
Trial Perspectives / Comments Off on Recoverability of Expert Witness Fees in Federal Court

Many litigants are unaware that testifying expert costs are not automatically recoverable in federal court like they are in state court.   Expert witness fees / costs are not an automatic taxable costs.   28 U.S.C. s. 1920 discusses taxable costs. 28 U.S.C. s. 1821 discusses a witness’ per diem costs of $40/day for each day’s attendance. See 28 U.S.C. 1821(2)(b) (“A witness shall be paid an attendance fee of $40 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.”).

The Eleventh Circuit in Primo v. State Farm Mutual Automobile Ins. Co. , 2016 WL 5436821, *5 (11th Cir. 2016) explained that, “[u]nder 28 U.S.C. § 1821(b), [a] witness shall be paid an attendance fee of $40 per day for each day’s attendance. The Supreme Court has held that when a prevailing party seeks reimbursement for fees paid to its own expert witness, a federal court is bound by the limit of § 1821(b), absent contract or explicit statutory authority to the contrary.” (internal quotations omitted).

In order to recover more than the standard per diem witness fee, either the contract needs to authorize expert witness fees or a specific federal statute needs to authorize the recovery of testifying expert costs. See Troche v. City of Orlando, 2015 WL 631280 (M.D.Fla. 2015) (“[A]bsent explicit statutory or contractual authorization for the taxation of the expenses of a litigant’s [expert] witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920. Section 1920 does not provide for costs for experts unless they were court-appointed.”) (internal quotations omitted).

When drafting a prevailing party attorney’s fees provision in a contract, I always like to include that the prevailing party is entitled to recover their testifying expert witness fees.  This way if the lawsuit is filed in federal court there is a contractual basis to recover expert witness 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.

Tags: , , , , ,

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?

images

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.

Tags: , , , ,

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:…

***

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.

Tags: , , , , ,

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

images

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.

Tags: , , , , , , , , ,

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.

Tags: , , , ,

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.

Tags: , , , ,

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

Unknown

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.

Tags: , , , , , , ,

Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com