What Happens When Expert Testimonies Conflict?

If expert witnesses contradict each other on a legal matter at issue, should courts exclude their opinions? In a recent case, the ruling judge said no, stating that differing expert opinions are not necessarily mutually exclusive. Indeed, even if conflicting opinions are presented, expert testimonies should supplement each other. Once given, it is up to the jury to determine their significance.

Jacalyn Crecelius, J.D.

Written by
— Updated on August 11, 2021

What Happens When Expert Testimonies Conflict?

The Slip and Fall Case: Malcolm v. Regal Ideas, INC.

In Malcolm v. Regal Ideas, INC., the plaintiff alleged he sustained injuries while using a ladder sold by Regal Ideas, INC. While atop the ladder, the rungs broke beneath him, causing him to fall. Malcolm was unable to work for some time and potentially would not be able to work again. He sought compensation for lost wages and an inability to work in the future. Both parties presented expert testimony in the matter. It was the opinions of three expert witnesses that were particularly controversial.

Contradictory Expert Testimonies: Who to Trust

One major element in the above case was the determination of potential future damages. Malcolm argued that he would not be able to resume work, therefore losing his ability to earn a living. To support his case, he retained an economist, neuropsychology and vocational expert, and a medical expert.

Mark Wagner and Dr. Lance Yarus, the neuropsychologist and medical expert respectively, were doubtful that Malcolm could return to work.

Economist Andrew Verzilli estimated lost wages to date were $153,000 but disagreed on the ability to resume employment. Verzilli concluded that the plaintiff is unlikely to have any loss of future income as a result of the accident.

One might expect that Malcolm and Regal Ideas, INC. had two very different reactions to these opinions. They did. The defense argued the court should block the testimonies of Wagner and Yarus due to information conflicting with Verzilli. The plaintiff, however, challenged Verzilli’s qualifications to the testimony regarding medical and vocational issues due to a lack of expertise.

Neither argument swayed Judge Baylson—he did not see the expert testimonies as being in conflict. On the contrary, he deemed them complementary. Baylson reasoned that each expert is able to look at the issue from different angles. Therefore, it is not unusual to find contradictions between them. Furthermore, each expert’s testimony discussed much more than Malcolm’s ability to return to work. To exclude them altogether would be to exclude helpful information regarding other elements of the case. If there is no question as to an expert’s qualifications, methods, or reliability, testimonies will be kept on record. The judge saw no such doubt in this case. Instead, he found all three to be reasonable, reliable, and admissible.

Qualification, Reliability, and Fit

According to Federal Rules of Evidence §702, expert testimony is meant to assist the trier of fact. These opinions should help fact finders understand the evidence or determine what is indeed fact.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the US Supreme Court provided many factors in determining an expert’s reliability. The Third Circuit later interpreted that to require an expert to possess qualification, reliability, and fit.

To be reliable, the court requires expert opinion to be “based on the methods and procedures of science.” It cannot be based on unsubstantiated speculation or subjective belief. Furthermore, the Third Circuit subsequently indicated it will give broad latitude as to what constitutes ‘specialized knowledge.’

Help in Avoiding this Conflict

Every person sees the world differently based on their own experiences, education, and environment. It should therefore be no surprise that expert witnesses often see things differently than the attorney hiring them. Experts in the same field may not be looking through the same lens, either. That means it is crucial for an attorney to fully understand an expert’s unique view. That takes a lot of work and a very specific way of interviewing potential witnesses.

This does not mean you look for an expert opinion that is perfectly in line with your case. If that happens, great. But keep in mind that fact finders should get a sense of independent thinking from a witness. After all, it might look suspicious if s/he and the retaining attorney agree on every single matter.

Yet, this does mean that a lot of work goes into the process. With everything litigating attorneys have to worry about, sifting through scores of potential witnesses should not be one of them. Thankfully, there are services available to timely (and affordably) find the right fit. Each case is different, therefore expert witness needs will be just as unique. Expert Institute’s Expert Witness Search is just such a service, customizing the search to your specific needs. With over 3 million experts in a global network, Expert Institute has the resources to widen the net. This means more options, quickly and efficiently.

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