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 firstname.lastname@example.org or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.