Christine Funk, J.D.

Previously, we discussed the fact certain states require affidavit of merit in medical malpractice cases. Similarly, many states have certain requirements[1] that must be met before a physician testifies as an expert witness in a medical malpractice case. The public policy arguments behind imposing requirements beyond those detailed in Rule of Evidence 702 include reducing

Posted on April 17, 2018 in Working with Experts

When approaching a case wherein expert witnesses may be of use, or even required, attorneys should proceed with caution. There are many ethical considerations that must be addressed when locating, retaining, and dealing with experts. For the purposes of this article, the Model Rules of Professional Conduct are referenced with the awareness that different states

Posted on April 24, 2018 in Working with Experts

Depending on the jurisdiction and the nature of the case, the methods employed for the discovery of expert witnesses may include interrogatories, depositions, informal meetings, phone calls, or email exchanges. But before you get to discovery, you must determine whether your expert’s identity needs to be disclosed and — if you choose to disclose your

Posted on May 15, 2018 in Working with Experts

    When neither side actually retains a named expert, the courts rarely require non-retained witnesses to testify.  However, it can happen in certain, rare circumstances.   When the issue does present itself, the Rules of Civil Procedure, along with caselaw, provide a roadmap for litigants and the court to determine whether to force testimony. Differences

Posted on May 29, 2018 in Working with Experts

A “hired gun” refers to the sort of expert witness who is willing to offer and, if necessary, testify, to whatever expert opinion that advances the hiring attorney’s case theory. If your intention is to avoid inadvertently retaining a hired gun, here are 4 clues you can look for. 1) The Expert Asks What Opinion

Posted on June 7, 2018 in Working with Experts

A subpoena duces tecum is a subpoena for tangible objects.  This may cover records, notes, a document tracking hours, or an actual item of potential evidence, such as a defective electric knife.

Posted on June 12, 2018 in Working with Experts

In many lawsuits, an expert witness is a necessary component.  Without an expert providing information on how and why something went wrong, or what the generally accepted standard of care is in their particular realm of expertise, juries may have no basis upon which to make an informed decision.  The types of lawsuits wherein experts

Posted on June 26, 2018 in Working with Experts

When an attorney is working with an expert witness who has not testified before, either in a deposition or at trial, there are a few areas of consideration an attorney should be particularly mindful of. While some of the suggestions below may seem obvious, all of the situations discussed below have actually happened with attorneys

Posted on June 28, 2018 in Working with Experts

The Federal Rules of Civil Procedure dictate the prerequisites for class actions.  Class actions are limited to those cases wherein the following prerequisites have been met: The class is so numerous that joinder of all members is impracticable There are questions of law or fact common to the class The claims or defenses of the

Posted on July 12, 2018 in Working with Experts

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the petitioners, the parents of two minor children, sought to sue Merrell Dow on the grounds that their use of a prescription anti-nausea medication, Bendectin, during pregnancy, caused their children’s birth defects.  The suit was originally dismissed after the District Court reviewed an affidavit from a “well credentialed

Posted on July 19, 2018 in Working with Experts