FINDING EXPERTS AND OTHER WAYS TO PROVE YOUR CASE

William F. Horsley
William F. Horsley, P.A.
www.horsleylawfirm.com

I. Introduction: The role of experts in product liability cases

Product liability cases require the use of one or more experts for successful prosecution. Never assume that simply because the case involves a product defect that the manufacturer or seller will automatically settle the case. If that doesn’t happen, and you don’t have the right expert, you are courting disaster!

Modern litigation has become increasingly complicated and much more of a challenge than ever before. Explosive technological development, judicial decisions and legislation all affect the manner in which lawsuits must be tried. This is especially true in product liability litigation.

Recent widely publicized cases, such as the O.J. Simpson murder trial (in which he was acquitted of the criminal charges) and the subsequent civil wrongful death trial brought by the survivors of Nicole Simpson and Ron Goldman (in which he was found responsible for their wrongful deaths) emphasized that experts and consultants play critically important roles in litigation. The more complex or important the matter, the more likely it is that one or all sides will employ and use experts, as either consultants or witnesses.

Recent court rulings (discussed below) have altered the rules and standards by which expert witness testimony is admissible. No longer can the trial lawyer simply find an expert with a good looking CV and have the expert express an opinion. The courts will closely scrutinize not only the expert’s qualifications, but also the manner in which he or she reached the opinion given.

II. Consult or Testify? How will the expert be used?

Lawyers use experts two ways. First is the traditional use of an expert as a witness in court. In that role, scientists, business people, doctors, engineers or others with technical knowledge are hired by the lawyer primarily to give an opinion in the matter, and to testify if necessary at deposition and/or at trial. Second, the expert may be used as a pre-trial consultant, or more specifically, as an undisclosed consultant who will provide technical assistance with many aspects of the case, other than the legal procedures.

The role experts play will vary from case to case. Most typically, the expert is used both for pre-suit and pre-trial consultation and for testimony.

A witness who is retained to give an opinion in the case must be disclosed during discovery. The consulting witness is typically undisclosed (see below for a discussion of the circumstances in which a consulting, non-testifying, witness might have to be disclosed). The types of work experts and consultants might perform includes:

• Educate counsel. Lawyers are usually generalists. We will learn a lot about a particular case and promptly forget most of what we learned when the case is finished. Consider the lawyer who is considering a product liability case against the manufacturer of medical equipment following the death of a cardiac patient. The lawyer will probably need to consult with experts in cardiology to understand the alternatives available at the time for proper treatment of the patient’s condition. For example, given the range of available options in cardiac care, such as dietary changes alone, medication, angioplasty (with or without stents) and bypass or “open heart” surgery, was the treating physician acting within the standard of care? Was the equipment used properly manufactured, labeled, and designed? Was an alternative design available? Practical?
• Case evaluation. Lawyers often use experts to determine whether a case has merit, such as finding out the cause of an automobile wreck and the resulting injuries to the client. Was it driver negligence, faulty brakes, highway design defect, or vehicle design defect? Sometimes, the expert will be used to determine the nature and extent of damages sustained, loss of earnings or earning capacity suffered, or medical causation.
• Testing. The product involved must sometimes be tested to determine whether a defect existed which caused the injury to the client. Perhaps the entire incident can be replicated to discover the cause of the accident. Sometimes, this testing can rule out a case against the product manufacturer or seller because it is discovered that the problem resulted from faulty installation. As we saw in the O.J. Simpson trials, testing can be used to cast doubt on the reliability of other experts’ conclusions or opinions.
• Experimentation. Experiments can be conducted to prove or disprove a point. Again, in the Simpson cases, experts conducted experiments with the glove “that did not fit” to show that an identical glove would/would not shrink if wet.
• Assist in case development. The expert can help the lawyer build the case. For example, an expert may gather information and evidence to show that safety devices were available which would have prevented the subject accident, and that their use was reasonable.
• Find other experts. Sometimes experts are used to recruit other experts, either because an expert in another field of specialty is needed or because, for some reason, the original expert is unable or unwilling to testify. This “peer-to-peer” contact may persuade the second expert to get involved in the case, where he or she may have been unwilling when approached by a lawyer.
• Prepare demonstrative evidence. Demonstrative evidence to illustrate the testimony of a witness can enhance the persuasiveness of the witness’ testimony. A computer animation or a Power Point presentation, or even an enlarged diagram will do wonders to help the jury understand what might be technical testimony.
• Assist with discovery. The expert can help the lawyer answer interrogatories about the more technical aspects of the case. He or she can also find documents for production. The expert can also advise the lawyer on areas in which discovery should be directed. The expert can offer suggestions for the deposition examination of opposing experts.
• Reports and affidavits. If necessary, the expert can prepare or sign an affidavit in response to defendants’ summary judgment motion.

III. Identifying the necessary expertise for the case

Often, a the facts of a case may dictate the need for several experts. For example, if you are investigating a case involving a possible defect in a piece of surgical equipment, you may need a biomechanical engineer to examine its design to see if a defect exists, you may also need a metallurgist to determine if there was a metals failure, you may need a human factors expert if there is likely to be a contention that the surgeon misused the device, you may need a surgeon for the same reason. Then, you can think about your causation and damages experts such as doctors, pathologists, economists, and the list goes on. In the O.J. Simpson trials, the experts called ranged from crime scene investigators, DNA blood analysts, knife experts, forensic pathologists, police practices experts, to glove and shoe manufacturers.

Sometimes the process can get out of hand. Frequently, deciding what, and how many, experts to use in the case is a bit like eating prunes. It’s hard to tell if two is enough, or if three is too many. You must make the decision with one eye on meeting the burden of proof, and the other on the bottom line, so the number and cost of experts don’t get out of control.

IV. Finding, selecting and preparing the expert

There are about as many ways to get information on expert witnesses as there are expert witnesses - which is to say a lot. After nearly 30 years of practice, which includes having learned some very hard lessons, I have learned some strategies for finding experts, checking their background, and preparing them for deposition or trial.

A. When to retain an expert:

As soon as the lawyer perceives that winning the case involves or depends on establishing scientific or other technical facts and explaining them to a jury, he or she should consider retaining the appropriate expert or experts. Indeed, whether the case should even be pursued may require some expert evaluation. Even compelling legal grounds may be inadequate without an expert’s testimony when a case depends on establishing a scientific fact, a cause-and-effect relationship, or the nature and extent of damage.

Looking for experts early on give you the benefit of time. You will have time to conduct a proper search for the proper expert, and to thoroughly screen and qualify the experts. The experts will have enough time to assess the case and be in a position to be of real assistance. If the expert you retain is “the man” in his or her field, the opposition is pre-empted from retaining him or her. You will avoid that anxiety filled eleventh hour scramble.

In some cases, particularly those involving highly technical issues, filing a complaint without an appropriate expert might result in having to fight off Rule 11 motions.

How to find an expert:

Don’t overlook the obvious. This means not everything is found only on the Internet. If you don’t have a reference library in your office, use the public library. If you do any substantial product liability work, you should have an “in house” databank of experts for all occasions. If not, don’t hesitate to ask around. For most lawyers, word of mouth referrals from a trusted colleague is often sufficient to verify an expert’s credentials. In fact, that’s how most of us find experts.

At legal conventions, such as the Academy’s annual convention and the annual and Winter conventions of ATLA, many experts man exhibit booths (particularly medical and engineering experts). There are also expert witness “services” that exhibit at these meetings, many of which have extensive “inventories” of potential experts.

Both the Academy and ATLA maintain list serves in various practice areas, including product liability. E-mail inquiries usually result in suggestions for experts from all over the state and the nation.

You can search the Forensic Services Directories of Westlaw or Lexis. If cost is a problem, you can call the “800" help number and have them do the search for you. If there are results you can use, then go online.

Trialsmith (formerly Depoconnect) has a huge inventory of expert witness depositions. It currently costs only $95 a year to join and this allows you to browse to see if there are any depositions you think are helpful. You can then purchase copies.

Then, of course, there’s the Internet. There are a multitude of sites on the net that make finding an expert easier than ever, but like everything else on the net, expert witness information differs from site to site. The primary difference is in the amount of information offered. Some sites provide direct access to a consultant, who may have his or her own web page with name, address, and a brief or detailed CV. Similarly, there are web directories compiled by organizations, such as CounselQuest, which lists individuals who may be contacted directly by the searcher. This paper will not attempt to list every site where experts can be found, but here are a few:

Hieros Gamos - www.hg.org -This site is good for a lot of legal things, including finding experts.

CounselQuest - www.gavel2gavel.com - This site lists individuals who may be contacted directly by the researcher.

Washlaw - www.washlaw.edu - This is the web site of Washburn University School of Law. It lists much more information than just expert witnesses. Click on the “List of Expert Witnesses, Private Investigators, and Legal Consultants.” Links are to web pages of individual consultants and organizations, as well as to major expert witness sites.

Lexpert Research Services - www.expertresearch.com - This is a network of “seasoned law professors” who are experienced expert witnesses. Lexpert will identify “professors” with expertise in particular subject areas.

Noble Expert Witness Directory - www.experts.com - Directory-type information on individual experts and consulting organizations.

Findlaw - www.findlaw.com - Recently purchased by West Group, Findlaw is another site that offers more than expert witness directories. It’s probably worth spending a couple of hours just browsing through Findlaw to see what is there.

Finding Expert Witnesses on the Internet - www.pimall.com - Primarily focuses on private investigators, but contains links to other expert witness directories, as well.

Expert Witness Directory - www.expertpages.com/index.htm - Provides links to thousands of experts in hundreds of fields.

ExpertLaw - www.expertlaw.com - Directory-type information for expert witnesses as well as litigation support services, investigators and an interesting library of free information. If you don’t appreciate lawyer jokes, stay away from the Legal Humor section.

You can also do a general search in some of the key Internet search engines. This may turn up personal information on the expert.

If you are a subscriber to Dialog (www.dialog.com), you can use your best Dialog search methods in relevant subject databases to find the person who toils daily as a professional engineer, university professor or the like, who may not be a “professional” expert with courtroom experience but who may lend credibility to your case. There are some Dialog files which should be common to any expert witness search, including: 148 Trade and Industry News; 287 Biography Master Index; 47 Dissertation Abstracts; 613 PR Newswire; 77 Conference Papers; 111 National Newspaper Index. Engineer searches should always include: 6 NTIS; 161 Occupational Safety and Health; 8 Compendex; and 14 ISMECH.

A caveat is in order. Remember that the business of being an expert witness is big business. With some experts raking in $5000 a day plus expenses, it is easy to see the lure of being one. Heck, I want to be one! Keep in mind that many of these sites are self-promotion at its best.

C. Investigating the expert. Even if an expert comes highly recommended from
fellow lawyers, his or her background and qualifications should be investigated before he or she is retained to work on the case. Once a potential expert has been identified, assuming he or she is not an expert you or your firm has used in the past, check with other lawyers to see what experience they have had with the expert. Again, a list serve inquiry on the Academy or ATLA list serves may generate some background information.

From lawyers who respond to these e-mail inquiries, or from Depoconnect (Trialsmith), see if you can get copies of transcripts of prior testimony. This will give you some idea of how the expert handles him/herself under oath.

Get a copy of the expert’s CV. If you have already communicated with the expert, he or she should be happy to provide you with a copy. Sometimes, it is a good idea to at least “spot check” the expert’s credentials to make sure the credentials are both valid and appropriate for your situation. If the CV provides references, check them out. Even if no references are given, ask for them. To be sure, the overwhelming majority of experts are exactly what they claim to be. Nevertheless, check them out before staking your client’s case on them. Ask for and read any relevant articles the expert has published. This will also give you an idea of how articulate he or she may be, as well as whether he or she is already on record with any opinions which might conflict with your position.

An expert willing to work on your case must be willing to make the commitment to do so. He or she must agree to be available, sometimes on demand, for consultation or for specific functions, including reviewing materials, providing reports or analyses, giving a deposition, and being available for possible trial testimony. If you encounter scheduling difficulties in setting up the initial meeting, this might bode ill for the expert’s accessability as the case proceeds.

You should also have a clear understanding of the cost of retaining the expert. It is a good idea to give the expert some indication of any budget constraints. Find out if there is a charge for the initial telephone discussion when you are deciding if the expert can help or not. Is there a charge for an in-person interview? Make sure you know this before you show up, or before the expert incurs time and expense in traveling to your office for the meeting. (By the way, an “in-person” interview is highly recommended so you can determine if the chemistry between you is good. It can also give you an opportunity to see how the expert handles him/herself and if he or she will be a credible witness.)

Get a fee schedule. Make sure you understand how you will be billed and on what terms payment will be expected. The better practice is to reduce your agreement to writing. Get an estimate from the expert and ask him or her to revise the estimate if additional work appears to be necessary.

D. Preparing the expert. Once the expert is retained, the process of preparing him or
or her for the task ahead begins. Carefully explain the role the expert will pay in the case (consultant or witness or both).

You should discuss fully with the expert the manner in which documents are to be produced and maintained. Do not assume that the expert will know about what records are to be kept. Explain carefully to him or her what records are to be made and maintained, and when and what information is not to be recorded, including by notes or memos. The lawyer should maintain an inventory of all materials provided to the expert in connection with the case. If the expert develops materials, copies should be given to the lawyer. It is crucial that both the lawyer and the expert know the documents, and which have been provided to the opposing party.

The expert should be given all relevant documents or facts developed through discovery. Include both the helpful and the harmful information. This will allow the witness to advise the lawyer on how to best deal with or rebut harmful facts, and he or she can better respond during deposition or trial testimony when confronted with these harmful facts.

If the expert is to be a witness, assume that all documents given to him or her, or received from him or her, are discoverable.

Even when the expert has a lot of experience testifying, ALWAYS meet with him or her before a deposition or trial to prepare for the testimony.

The deposition of a product liability expert by opposing counsel is likely to be a wide-ranging affair. Counsel will not only want to size up the expert, he or she will also want to explore the witness’ background and qualifications, learn the expert’s opinions and the basis for those opinions, and hopefully develop grounds for cross examination at trial. Occasionally, counsel will use the deposition as a means of discrediting the expert. The expert should be prepared for all of this.

Here, in no particular order, is a checklist for the preparation and use of an expert:

• The witness must stay within the bounds of his or her expertise.
• Give the witness the documents or records in an organized fashion.
• Make sure the witness understands the difference between “probability” and “possibility.” He or she should avoid such phrases as “it might be true,” “it is possible,” it “might have” that effect, it “could have” that effect.
• Can the witness bolster his or her opinion with examples of scientific literature or other relevant documents.
• Encourage the expert to refer to the record or to other documents if necessary, since source materials enhance credibility. Be certain the expert understands that he or she will be cross examined on whatever is used. (Make sure YOU know what is there, too.)
• Review with the expert the definition of such things as “proximate cause.”
• Make sure the witness if familiar with applicable industry or government standards regarding the product.
• Review with the witness the possible weaknesses in the case, and how best to deal with them during the witness’ testimony.
• Review discovery responses with the witness, particularly those relating to facts on which he or she may have relied in forming opinions.

If you have chosen wisely, investigated thoroughly, and prepared well, you should be on your way to a successful outcome.

V. “Other ways to prove your case”

A. Discovery of the opponent’s consulting expert. Rule 26(b)(3) provides:

(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s consultant, . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. . . .

[emphasis added] This rule is designed to prevent one party from taking advantage of the other party’s investigative work, but it does not absolutely close the door. Note that this rule speaks of material prepared in anticipation of litigation, not attorney’s work product. The Federal equivalent is Rule 26(b)(4)(B), FRCP, and it requires a showing of “exceptional circumstances” in order to gain access to the work of a consulting expert.

An example of when either “exceptional circumstances” may exist under the Federal rule, or a showing of both “substantial need” and “undue hardship” in obtaining the equivalent under the North Carolina rule, would be when a test was performed on the device or product in question and the test destroyed or substantially destroyed the device, making it unavailable for testing by plaintiff’s expert.

In addition to these showings, the opponent’s expert may have been given reports or information prepared by a non-testifying consulting expert and then reached his or her conclusions in reliance upon those reports or that information. Ordinarily, this information would not be discoverable. However, the reliance of the expert on that information makes it discoverable, even though it might not otherwise even be admissible.

Because discovery from experts (those expected to testify) is covered by Rule 26(b)(4), it is clear that the above speaks to experts retained for consultation only, and not for trial.

Whether dealing with the “exceptional circumstances” standard of the Federal rule, or the “undue hardship/inability to obtain substantial equivalent” standard of the North Carolina rule, the burden on the party seeking discovery is heavy. The courts will not lightly require one party to hand over documents prepared in anticipation of litigation. However, the party opposing discovery must be able to show that, at the time the materials were prepared, there was “more than a remote possibility of litigation.” Fox v. Cal. Sierra, 120 F.R.D. 520 (N.D. Cal. 1988). Materials prepared in the ordinary course of business are not “prepared in anticipation of litigation” and are not, therefore, given protection under the rule. Willis v. Duke Power Co., 291 N.C. 19, 35, 229 S.E.2d 191, 201 (1976).

B. Rule 30(b)(6) depositions - the search for “Deep Throat.” This rule states:

A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. . . .

Note that the subpoena must describe the area(s) of inquiry and that the institutional party may (or shall) designate more than one person to testify.

In product liability litigation, the Rule 30(b)(6) deposition may be much more useful than the usual array of discovery (interrogatories, requests for production, etc.), but there is a paucity of reported cases touching on the rule, indicating perhaps a lack of use by lawyers. By carefully drafting the description of the matters to be examined, a lawyer can virtually dictate the person or persons from the opposing corporate entity who will have to testify. If the proper person(s) are designated, there are tremendous advantages to be gained: instead of wasting time on depositions of persons who end up knowing nothing useful, the lawyer can go directly to the person(s) the defendant says will be familiar with the area of inquiry. Eliminated are blanket objections and vague and evasive answers to interrogatories. Inquiry can be much more probative. Instead of wading through mountains of unintelligible documents, you can have them explained by someone with firsthand knowledge.

The Rule 30(b)(6) deponent can identify documents within the company that might otherwise go unnoticed, or undisclosed. The deponent can describe other potential sources of information or documentation, the types of documents prepared in the course of defendant’s business, and record keeping procedures within the defendant company. You will be surprised at how often these depositions turn up documents the existence of which had been denied in response to routine discovery.

The Rule 30(b)(6) deponent can authenticate documents for use at trial.

Be aware that the defendant has the choice of whom to designate for the deposition. The rule requires the deponent(s) to be able to testify on the matters described in the subpoena or notice. Care must be taken to make sure the witness isn’t some stiff who will then deny any relevant knowledge. If that happens, file your motion! Occasionally, the defense will designate someone who is, in effect, the “in house” designated deponent. He or she may not have much relevant knowledge, but will be skilled in giving testimony and will be vague and evasive. Treat such a witness like an expert. Proceed with the deposition, but insist that the witness identify other persons within the organization who are knowledgeable on the designated areas of inquiry, so their depositions can follow.

At every such deposition questions should be asked designed to identify persons responsible for particular decisions concerning the product’s design, manufacture, safety evaluation, etc. Often, individuals are thus identified for future depositions who may not have been identified by defendant in discovery responses.

Rule 30(b)(6) depositions can also be used to find former employees (who may be more candid than a witness still on the defendant’s payroll) who may be deposed about the former employer’s practices and policies, or who may have information concerning the particular product involved in the litigation.

Anyone who has ever conducted discovery in a products liability case knows how hard the defense fights to avoid divulging information about subsequent design changes. The Rule 30(b)(6) deposition can expedite this process. At least the deponent should be able to describe similarities and alleged dissimilarities between the subject product and successor models or later, current, products. This is good ammunition for a motion to compel.

Sometimes you get lucky and the deponent will make some damaging admissions. Since the witness is one designated by defendant, it cannot claim that the witness, who may be a lower level employee, does not speak for the company. That the admission comes from this “chosen witness” makes it that much more forceful when presented to the jury, later.

Sometimes the defense will designate someone who is the “know-nothing” witness. It will quickly become painfully clear early in the deposition that this witness knows nothing. Nevertheless, he or she may know who does know and should be forced to identify knowledgeable persons for later depositions.

Here are some suggestions for a Rule 30(b)(6) deposition:

• Consider noticing this deposition early in the litigation. Because you will have thoroughly investigated the case before filing suit you will have an advantage over the defense attorneys, who may have only recently been given the file for defense.
• Confer with your expert in preparing the notice and subpoena and in describing the areas of inquiry. Your expert will be a primary beneficiary of the information developed in the deposition and should have input as to what will be important.
• Be specific in describing the areas of inquiry. The more general you are in the description, the more likely it is that you’ll get the “know-nothing” as designated witness. Instead of saying “that employee most knowledgeable concerning the product,” designate separate categories for product design, product safety, alternative designs, complaints, etc.
• Use the deposition notice in conjunction with a request for production, with the production scheduled at least a week in advance of the deposition.
• The deposition notice should be the first exhibit introduced at the deposition, having the witness acknowledge on the record that he or she is the person most knowledgeable concerning the areas of inquiry.
• Have the witness authenticate all the documents produced in response to the request for production. Consider designating as an area of inquiry the person most familiar with the documents produced.
• Know the law. Know the facts. Know any applicable standards.
• Follow up with additional discovery as necessitated or suggested by the witness’s testimony.

C. Industry and governmental standards. Rather than list all the possible standards
that might be relevant to a product liability lawsuit, I will refer you to one web site that does the job nicely:

http://users.erols.com/mlesh/standards.htm

This is the web site of Michael D. Lesher, an engineer and frequent expert witness. There are hundreds of links to other sites where specific standards can be found.

You can also get information from Thomas Register at its web site: www.thomasregister.com. You may register at no cost and gain access to thousands of online companies to view their web sites and catalogs. You can also download CAD drawings.

For the patent for a particular product, you can access the U.S. Patent Office for full text patent applications. Go to: www.uspto.gov/patft/index.html. You may have to know the patent number. The product manufacturer’s patent application often makes grand claims about the product’s utility and its safety. Blown up, poster-sized reproductions make excellent trial exhibits.

ASTM International (formerly ASTM) is a non-profit organization providing a global forum for the development and publication of voluntary consensus standards for materials, products, systems and services. ASTM publishes these standards along with other technical publications. It sponsors symposia on standards and all this can be located via its web site at:
www.astm.org.

The American National Standards Institute (ANSI) is another non-profit organization which administers and coordinates voluntary product standards. Its web site is found at: www.ansi.org.

VI. Conclusion:

Much of the material in this presentation, though geared to product liability cases, has equal applicability to almost any other kind of litigation requiring expert witnesses. Experts can make or break the case, and must be chosen and prepared with care. The use of a good expert along with the other techniques and suggestions in this paper enhances plaintiff’s chances at trial. However, there is no easy way to develop a product liability case. There is no substitute for solid, thorough preparation.

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