A rare incident occurred last month in Charleston, South Carolina, as lawyers argued about the qualifications of an expert witness with no formal training. Bill Williams, the owner of a forensic consulting business and an accident recreation expert, was called to testify by plaintiff’s counsel in the case involving the shooting of Walter Scott. Despite a lack of training or education in the field; Williams cited professional experience and over 500 hours compiling a timeline of the events leading up to the shooting as his qualifications.
This was not the first time Williams was offered as an expert witness. In 2010, the South Carolina Supreme Court reviewed a case in which Williams offered testimony as an expert on automobile cruise-control systems in regard to the Ford Explorer.
In finding that the trial court made a mistake by allowing Williams’ testimony, the South Carolina Supreme Court stated, “In our view, there is no evidence to support the trial court’s qualification of Williams as an expert in cruise control systems. Williams had no knowledge, skill, experience, training, or education specifically related to cruise control systems. Rather, it appears he merely studied the Explorer’s system just before trial.”
In the Walter Scott case, the lead prosecutor argued on behalf of Williams. Stating that he “has skills that the common man doesn’t have” and mentioning the hundreds of crime and accident scenes that Williams has examined. This was enough to overcome the SC Supreme Court’s previous ruling on Williams.
In the case at hand, the defense specifically questioned Williams on the geometry he used in his scene reconstruction. Williams said the geometry was just what he learned in high school. Williams’ testimony included 4 hours without the jury before the judge ruled that he can be admitted as an expert in computer technology, crime-scene analysis, and other fields. After this testimony, the judge ruled that Williams was an expert in computer technology, scene analysis, video syncing, animation and timelines.
Although somewhat uncommon, this was not the first case where a party decided to use a “self-taught” expert witness. In Orthoflex, Inc. v. ThermoTek, Inc., 983 F.Supp.2d 866 (N.D.Tex. 2013), a breach of express warranty case, the Plaintiffs offered an expert to opine that the damages calculations regarding ThermoTek’s unfair competition claim were flawed for various reasons. ThermoTek contended that the expert’s testimony should be excluded because he was not qualified to offer an opinion on unfair competition damages.
The Northern Texas District Court opined that an expert need not be the most qualified in his field or even have graduate-level academic or professional training in a particular specialty to qualify as an expert. Although the expert was not a certified public accountant, he did hold a Masters Degree in Business Administration from the J.L. Kellogg Graduate School of Management at Northwestern University.
Because he was being offered to testify about a form of economic damages, and this analysis merely required that he apply accounting principles to the data the parties provided, his graduate degree in business administration, in addition to 20 years of management and consulting experience were sufficient to satisfy the threshold inquiry. Cf. Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881–82 (5th Cir.2013) (holding that expert’s computer science background and self-taught knowledge of software were sufficient qualifications for expert to testify about software programming in field of complex-services procurement).
In addition, the court found that the fact that he had not testified before as an expert did not automatically make him “unqualified”. See Rolls–Royce Corp. v. HEROS, Inc.,2010 WL 184313 (N.D.Tex. 2010) (“An expert’s lack of experience as an expert witness is no bar to his testimony”).
The comparisons between this case and Williams are apparent. In Williams’ case, the judge ruled that although Williams was self-taught in accident reconstruction and had little experience testifying in criminal cases; the fact that he was an expert in the technology applied in the reconstruction trumped the fact that he had little experience with the particular application of the technology to a shooting incident.
A case where a lack of formal experience and training was prohibitive in an expert witness testifying was People v. Douglas COA 155 (2015).
This case differs from the Orthoflex case in that the expert had no education in the field whatsoever, much like Mr. Williams. It also differs from Orthoflex because in Douglas, the expert who lacked formal experience and education was not allowed to testify. In Douglas, the expert offered by the defendant testified that he had experience building medical marijuana grows. However, he did not explain how he obtained his expertise in this field. When questioned as to how he gained his experience, the expert’s only answer was that he was self-taught. The Colorado court of appeals agreed with the district court that, if a proposed expert is self-taught, he must provide some indication of what he did to teach himself to establish a sufficient foundation for his qualifications.
The Court recognized that when an expert bases his qualifications solely on self-taught experience, he must explain what that experience is or how his expertise grew from it. 523 IP LLC v. CureMD.Com, 48 F. Supp. 3d 600, 647 (S.D.N.Y. 2014) (rejecting proffered expert who asserted he was self-taught but fail[ed] to elaborate how or what [he] self-taught in order to gain expertise). The court noted that to be qualified as a self-taught expert, the expert must provide sufficient information so that the court has a way to determine the extent or depth of the proposed expert’s self-study.
The Colorado Court of Appeals recognized that under Rule 702, an expert may be qualified by experience alone. See People v. Bornman, 953 P.2d 952, 955 (Colo. App. 1997) (finding licensed automobile dealer qualified as an appraisal expert where he had appraised thousands of cars and had twelve years of experience); Colorado Arlberg Club v. Bd. of Assessment Appeals, 719 P.2d 371, 374 (Colo. App. 1986) (holding that agency erred in refusing to qualify appraisal expert who was a part owner of an appraisal business with seven years of experience) Town of Red Cliff v. Reider, 851 P.2d 282, 285 (Colo. App. 1993) (finding expert qualified because he had been in the relevant business for a number of years and gained experience working under the supervision of others in the field).
The Court stated that experience-based specialized knowledge, however, remains subject to an inquiry regarding validity and reliability. In all cases, even where expertise is based on experience alone, the trial court must maintain its role as a gatekeeper. To ensure that specialized testimony is reliable, relevant, and helpful to the jury. While experienced-based testimony may invoke different reliability considerations than scientific testimony, the court must still determine whether the witness is qualified to render an expert opinion.
Without any testimony explaining how the expert learned about medical marijuana grows; the court had no basis to determine that his testimony was reliable. Therefore, the Court of Appeals found that the district court did not abuse its discretion in refusing to qualify him as an expert witness under Rule 702. See United States v. Kelley, 6 F. Supp. 2d 1168, 1184 (D. Kan. 1998) (rejecting proposed expert on growing marijuana who lack[ed] any academic background, formal education or training, and experience besides self-directed efforts because there must be a foundation from which the court can find that the expert’s testimony is reliable as a result of these self-directed efforts.)
