Articles Posted in Expert Witness News

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write on when the expert testimony does not fit the case:

The expert testimony must also “fit” the facts of the case. That is, the expert must testify about scientific theories that have a direct impact the case at hand. One interesting case-where the Court of Appeals rejected a challenge to an expert based on lack of “fit”-was the decision in Gigliobianco v. State, 179 S.W.3d 136, 141-42 (Tex. App.-San Antonio 2005) aff’d, 210 S.W.3d 637 (Tex. Crim. App. 2006). Gigliobianco involved an allegation of drunk driving. The state submitted breath test results that the police took some time after the arrest. The Defendant objected that the results should have been excluded under Rule 702 “in the absence of retrograde extrapolation proving his alcohol content at the time he drove.” Id. at 141. Without such an analysis, he argued, “the State’s expert’s testimony did not ‘fit’ the facts of the case because the expert did not know … his alcohol content when he drove.” Id. The Court acknowledged the “fit” requirement: “Expert testimony must be sufficiently tied to the facts to meet the simple requirement that it be helpful to the jury.” Id. at 142 (citations omitted). But the Court still found that the evidence was relevant and admissible. Id. (“the intoxilyzer test results and the expert testimony were properly admitted because ‘they are pieces in the evidentiary puzzle for the jury to consider in determining whether [defendant] was intoxicated at the time he drove.'”

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write on when the expert’s facts are wrong:

An expert’s opinion is unreliable if his or her facts are wrong. As the Supreme Court explained, if “the foundational data underlying the opinion is unreliable, … any opinion drawn from that data is likewise unreliable.” Havner, 953 S.W.2d at 714. One variant of this argument is when the expert makes unwarranted assumptions. For example, the Seventh Circuit affirmed the exclusion of a “lost profits” expert on the basis that his assumptions about market penetration were “optimistic.” Target Market Pub., Inc. v. ADVO, Inc., 136 F.3d 1139, 1144 (7th Cir. 1998). Target Market is significant because the expert’s assumptions were similar to the defendant’s own projections of potential profits in its marketing plans. Id. The Seventh Circuit held that experts still needed to prove the assumptions behind such projections. See Id. at 1145 (“The [marketing] plan sought to demonstrate what Select Auto’s profits might be given certain assumptions that had not yet, and might never, come to pass.”).

Advertising expert witness Paul Wright, is a principal of SignValue. This SignValue survey includes bad news for print media:

1) Contrary to previously published survey results, 24.7% of all respondents here indicated that their 2009 media expenditures will remain flat to potentially increase approximately 10% over 2008.

2) As a result of economic slowdown, 40% of respondents shifted dollars into e-mail marketing from print.

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write:

The Admissibility of Expert Testimony in Texas after Daubert and Robinson. Rule 702 governs the admissibility of expert testimony in Texas: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. TEX. R. EVID. 702. 1. The Robinson Opinion Created the Framework for Applying Rule 702. Robinson’s core holding is that Rule 702 requires the trial court to serve as a “gatekeeper” to ensure that (1) the expert is qualified and that the expert testimony is both (2) relevant and (3) reliable. Robinson, 923 S.W.2d at 553-54 & 556; see also Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (en banc) (holding that, in evaluating expert testimony in criminal cases, “the trial court’s first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results.”). According to Robinson, the relevancy requirement is critical because of the prejudicial effect that expert testimony has on the jury: “a jury more readily accepts the opinion of an expert witness as true simply because of his or her designation as an expert.” Robinson, 923 S.W.2d at 553 (citations omitted). As to reliability, Robinson announced a “nonexclusive” six-factor test to evaluate expert testimony:

(1) the extent to which the theory has been or can be tested;

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write:

The practical effect of Robinson in Texas has been an increase in the scrutiny of expert testimony. Even popular media coverage has identified the 1993 Daubert decision as a severe restriction on expert testimony. See, e.g., Laura Parker, Yates Trial Highlights Power of an Expert Witness, USA TODAY,June 20, 2006 (quoting a well-respected defense lawyer as saying “[b]efore the (1993) decision, I was seeing the most outlandish testimony. People with no credentials offered conclusions without explaining themselves ….”). Ironically, the Supreme Court intended Daubert to represent a less restrictive test for the admissibility of expert testimony than the prior “general acceptance” test used in federal courts. Daubert, 509 U.S. at 588 (“a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to ‘opinion’ testimony.”) (citations omitted). Nevertheless, in Texas, courts have taken seriously their gatekeeper function under Robinson.

Roger A. Lenneberg of Constructive Solutions, LLC can tell you that the best experts know more than just their field-they know how to be a witness. His seminar Law, Evidence & Testimony For Building Forensics Experts – What to Say, When to Say It, and How to Say It is designed to provide experts with the knowledge and skills necessary to prepare and deliver effective, convincing testimony. Presenters include:

Mr. Lenneberg, with 25 years experience as a trial lawyer and mediator in the construction industry. He is a frequent lecturer on construction law and mediation. He also offers seminars for contractors on risk and project management. Roger is the past Chairman of the Construction Section for the Oregon State Bar and is admitted to practice in Oregon and Washington.

Laura Dominic, Tsongas Litigation Consulting, Inc., with 12 years of experience as a jury consultant. She has worked with hundreds of witnesses to improve confidence and credibility. She has given many seminars and participated in witness training workshops for all types of lay and expert witnesses. Her services also include strategic case presentation, creating persuasive demonstrative exhibits to support witness testimony, jury selection, and pre-trial jury research.

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P.write:

The Texas appellate courts have a deep interest in experts. Since 1995, few topics have consistently generated as many opinions from the Texas appellate courts as has the topic of expert testimony. The Texas legislature has also taken an interest in experts. The Legislature recently tightened the longstanding requirement in medical malpractice cases that plaintiffs provide an expert report to support their claims. The Legislature has also started requiring expert reports in other types of lawsuits.

The starting point for any discussion of experts is Rule 702. The U.S. Supreme Court inaugurated the current approach to Rule 702 in its landmark 1993 decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The Texas Supreme Court adopted Daubert less than two years later in 1995. E.I. Dupont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Following Daubert and Robinson, a body of case law developed in Texas setting out (1) the substantive standards for evaluating the admissibility of expert testimony and (2) the procedures for preserving error when challenging experts. Soon after Robinson, however, the Texas Supreme Court applied the standards for the admissibility of experts at trial to appellate “no evidence” challenges to final judgments. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711-14 (Tex. 1997).

Tobacco control expert witness Dr. Michael Siegel has served as an expert witness in several major tobacco litigation cases. The associate chairman and a professor in the Department of Community Health Sciences at Boston University writes on the electronic cigarette issue:

Connecticut Attorney General Richard Blumenthal recently announced plans to seek a ban on the sale of electronic cigarettes in the state. This ill-advised decision follows a federal Food and Drug Administration report that put a scare into electronic cigarette users across the country, telling them that these battery-powered devices – which deliver nicotine without burning tobacco like conventional cigarettes – are dangerous because they contain carcinogens…

However, the FDA failed to mention in its press conference that the levels of tobacco-specific nitrosamines (the carcinogens) detected in electronic cigarettes were extremely low, below the level allowed in nicotine replacement products, such as nicotine patches, inhalers and gum. The agency is not threatening to take nicotine patches or gum off the market, although they too contain detectable levels of carcinogens…

Petrochemical expert witness Douglas Buchan testified for the plaintiff in the U.S. District Court in Green Bay and describes how the lawsuit led to the State of Wisconsin changing the law to cover and protect the public with the installation of propane systems.

The Higdon family filed a complaint against Cedar Grove Resort, some construction companies, a utility and their insurance companies claiming that negligence caused propane explosions in Ellison Bay in 2006. The fire caused the death of Patrick and Margaret Higdon and injured twelve others. The family was awarded a settlement worth more than $21 million.

The case led to the State of Wisconsin changing the law in that State to cover and protect the public with the installation of propane systems in that state. This new regulation will save lives and increase the safety of propane gas pipeline installations and systems in the State of Wisconsin. All the propane gas pipelines that are currently installed and those being installed underground in public places are now required to be registered with the State’s One Call office. Suppliers and construction companies must follow new rules when dealing with propane and the law creates a communication system for underground gas lines.

No one can pinpoint why Diane Schuler, 36, drove the wrong way on a familiar suburban New York parkway for nearly 2 miles before slamming head-on into another vehicle, killing herself and seven others. A medical examiner is digging deeper for answers after ruling that Schuler didn’t have a heart attack or stroke behind the wheel, and plans further testing to determine whether she had signs of an advanced diabetic condition.

After forensic pathologists ruled out a stroke, aneurysm or heart attack, Dr. Kunjlata Ashar, deputy medical examiner for Westchester County, said she would test Schuler’s eye fluid for evidence of heightened blood sugar levels, a possible sign of ketoacidosis. Noted pathology expert witness Dr. Michael Baden, however, doubted that possibility for Schuler. “People just don’t have a hypoglycemic crisis out of the blue,” said Baden.

Excerpted from TownHall.com.