In the pre-Daubert days, the primary test for expert testimony admissibility was an expert’s background or qualifications. After the Daubert trilogy, courts pivoted from emphasizing an expert’s qualifications to placing greater emphasis on the reliability test. Proponents of expert testimony now usually spend the majority of their time making sure their expert’s testimony is reliable instead of defending the expert’s qualifications. However, the attorney who neglects to prepare for an attack on their expert’s qualifications is playing a dangerous game. In addition to being fair game on cross-examination, a poorly qualified expert may come under close scrutiny by a trial judge looking to limit his testimony. Below, we’ve identified 10 points to remember regarding expert qualifications. Refer to these while choosing and vetting your experts, before depositions of experts, before Daubert briefings, and before trial.
1) Lay the Proper Foundation for the Expert’s Qualifications
Even as courts place a higher emphasis on the reliability test, proponents of expert testimony must demonstrate how an expert’s background qualify him or her to testify on a desired topic. This can be done by proving two things to the court:
- the witness has the necessary qualifications to offer expert witness testimony on the specific topic
- the offered testimony is within the expert’s specialty.
Attorneys must be able to prove that their witness has more than mere general knowledge on the topic. In Gammill v. Jack Williams Chevrolet, Inc., an expert mechanical engineer attempted to offer testimony that a poorly designed seatbelt in an automobile was responsible for Plaintiff’s daughter dying in a car wreck. According to the witness, if the seatbelt had functioned properly at the time of impact, it would have restrained the girl and saved her life. However, the engineer had no specific expertise in the design or manufacturer of automobiles. Rather, the majority of the expert’s professional experience had to do with aviation engineering issues involving fighter jets and helicopters. Due to his lack of specific knowledge and expertise, the witness was not allowed to testify about design defects in the automobile.
2) Show the Link Between Your Expert’s Experience and Conclusions
When relying on an expert’s experience the proponent must explain how that experience helped the expert reach his ultimate conclusions, how the experience was a sufficient basis for those opinions, and how the experience was reliably applied to the facts of the case. The trial court’s gatekeeping function requires more than simply “taking the expert’s word for it.”
In Ankuda v. R.N. Fish & Son, Inc., a passenger on a ship was injured going through a doorway with a six-inch threshold. The passenger’s expert testified that the door was not functioning properly. The court found that the expert made no connection from his experience to his conclusions. The expert did not illustrate the source of his knowledge that the door was malfunctioning. For example, the expert did not point to any studies or published maritime standards for proper ship door operation. He also could not explain how he had any kind of specialized knowledge and/or experience regarding proper door performance on sea vessels.
3) Be Aware of Medical Licensing and Certification Requirements
Experts offering medical causation opinions must typically be licensed physicians. However, a testifying physician is usually not required to be licensed in the jurisdiction where the case is pending. Non-physician healthcare professionals have varying licensure requirements. Board certification or a valid state license may not be required for a non-physician to offer expert testimony in cases involving nursing standards, chiropractic issues, or nursing home standards. When using these non-physician witnesses it is important to remember that a lack of certification or licensure will likely be exploited on cross-examination; even though the court may not rule the witness’s testimony inadmissible.
4) Make Sure Engineering Experts Have Specific Qualifications
Per the Federal Rules of Evidence, a “qualified” expert witness is a witness who has the knowledge, skill, education, experience, or training in a specialized field. Some professions, like attorneys and physicians, require a license in order to formally become a member of that profession. But unlike attorneys or physicians, professional engineers are licensed on a national level. If an engineer receives a bachelor’s degree from an accredited college, passes the Fundamentals of Engineering exam, and subsequently gains sufficient experience in the field of engineering, he or she becomes licensed in all states.
Despite this general licensing process, a testifying engineer must still be qualified in the specific engineering discipline at issue in your case.
In Tokio Marine & Fire Insurance Co. v. Grove Manufacturing Co., the Plaintiff sought to have a civil engineer named as an expert. The civil engineer was expected to testify that the crane manufactured by the Defendant was defective. Although the civil engineer was licensed, the court ruled he was not qualified to offer opinion testimony regarding crane defects. The court found that the expert’s work experience lacked any involvement with the design or manufacture of cranes. A true expert in crane defects, according to the court, would be a mechanical engineer, a person with vast experience in the design and manufacture of cranes, or a person involved in the teaching thereof.
5) Understand the Requirements for Financial Experts
The three most common testifying financial experts are accountants, economists, and actuaries. Each of these fields of financial expertise have separate licensing requirements that attorneys must be aware of. Attorneys seeking expert testimony on accounting issues typically want a witness with the Certified Public Accountant (CPA) designation. Even though such an expert can be qualified without the credential.
Economists offering expert testimony regarding economic opinions normally have a doctorate degree. They are not, however, required to have a specific financial license.
Actuaries often offer expert opinions in financial cases involving insurance issues and statistical analyses. An actuary must be a member of the American Academy of Actuaries to sign an actuarial statement of opinion.
6) Remember Parties Can Be Qualified as Expert Witnesses
While it may seem prohibitively self-serving, nothing in Rule 702 states that a party cannot testify as an expert witness on his own case. Employees can serve as experts on behalf of their employers, company owners may testify regarding valuation issues and lost profits, and inventors may provide opinion testimony about their patents. However, if the opponent of such testimony suspects any bias on the witness’s part, the opponent can attack that bias on cross-examination.
7) Experts do not Need to be Published
Publication of peer-reviewed material is, of course, helpful in showing the court that your expert’s opinions are reliable. However, publication on the specific topic at issue is not a mandatory requirement to offer opinion testimony. In First Tenn. Bank Nat’l Ass’n v. Barreto, the trial court allowed a banker to testify about proper lending practices based primarily on his own experience of forty years in the banking industry. The appellate court upheld the ruling. It stated that “opinions formed in such a manner do not easily lend themselves to scholarly review or to traditional scientific evaluation.”
8) Make Sure Expert Specialties Match the Subject Matter at Issue
Whether or not an expert must have experience in the specific subject matter of the case requires an industry and case-specific analysis. It is always a good idea to make sure you can match your opponent’s expert. If your opponent’s expert has a Ph.D, you would do well to make sure your expert has one as well. Another good rule of thumb is to find an expert whose experience is the same or similar to the subject matter of your case.
For physicians, American Medical Association model legislation states that physicians giving testimony should be trained and experienced in the same discipline as the defendant. Or they should have specialty expertise in the disease process or procedure performed in the case.
Engineering experts offering opinion testimony regarding design issues should have experience with the specific product at issue. In Buzzerd v. Flagship Carwash of Port St. Lucie, Inc., Plaintiff’s expert was an automotive engineer who opined that excess carbon monoxide levels seeped into a truck cab and injured the Plaintiff. The court held that although the witness was a qualified automotive engineer, he had no specialty in aerodynamics or air flow to reliably testify that the carbon monoxide could have flowed into the cab.
9) Understand That Experts Need Expertise Outside of the Courtroom
An expert should not acquire his qualifications or knowledge inside the courtroom. Gaining expertise through education as a paid witness will likely lead to the witness’s opinions being deemed unreliable in court. “That an expert testifies for money does not necessarily cast doubt on the reliability of his testimony. . . . But in determining whether proposed expert testimony amounts to good science, [courts] may not ignore the fact that a scientist’s normal workplace is the lab or the field, not the courtroom or the lawyer’s office.” Daubert v. Merrell Dow Pharmaceuticals.
Oftentimes “professional” expert witnesses will end up causing your cause more harm than good. You want to stay away from witnesses who heavily advertise. Or those who pay to be placed on a directory offering their services to anyone for a fee. Also, make sure your witness has not been spending all of his time in the courtroom. If you hire a physician to testify regarding a medical malpractice case your physician should still be practicing medicine. Instead of only running his expert witness business.
10) Consider How a Trial Court Will View an Expert’s Qualifications
Trial courts typically examine an expert’s qualifications after the discovery phase is concluded. This is because evidence in the case needs to be fully developed for either side to adequately challenge or defend an expert’s qualifications. The majority of expert challenges tend to come in the context of summary judgment. It is during this phase of the litigation where the trial court will exercise its gatekeeping powers to determine which topics an expert witness is qualified to testify. In addition, the witness seeking to offer opinion testimony on multiple topics must show his background qualifies him on each topic. Courts routinely rule that a witness’s experience qualifies him to testify on some topics but not on others.
The standards for expert witness qualifications can be complex and nuanced. Attorneys must closely examine a witness’s claimed background when deciding which expert to hire. Refer to the ten points above on expert witness qualifications when vetting any potential expert for your case.