EXPERT DISCLOSURE AND THE ADMISSIBILITY OF EXPERT TESTIMONY IN NEW YORK AND FEDERAL COURTS KYLE N. KORDICH, ESQ.

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1 EXPERT DISCLOSURE AND THE ADMISSIBILITY OF EXPERT TESTIMONY IN NEW YORK AND FEDERAL COURTS KYLE N. KORDICH, ESQ. I. DISCLOSURE OF EXPERTS UNDER CPLR 3101(d): CPLR 3101(d) Trial preparation. 1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph. THIRD JUDICIAL DISTRICT EXPERT DISCLOSURE RULE Except as otherwise directed by the Court, a party who has the burden of proof on a claim, cause of action, damage or defense shall serve its response to an expert demand pursuant to CPLR 3101(d) on or before the filing of the Note of Issue. Such party has until the filing of the Note of Issue to serve such response regardless of how early the demand is made. Any opposing party shall serve its answering response pursuant to CPLR 3101(d) within 60 days after the filing of the Note of Issue. Any amended or supplemental expert disclosure shall be allowed only with the permission of the Court. Unless the Court directs otherwise, a party who fails to comply with this rule is precluded from offering the testimony and opinions of the expert for whom a timely response has not been given. The statutory stay for disclosure [CPLR 3214(b)] upon the service of a dispositive motion under CPLR 3211 shall not apply to the service of these expert responses. The word expert shall include, but is not limited to, any physician, dentist, chiropractor, psychiatrist, psychologist, other health care provider of any specialty, economist, engineer, architect, lawyer, accountant, appraiser, rehabilitation counselor or other person who will testify concerning his/her qualifications and give opinions concerning the issues in the case. However, expert shall not include a treating physician or other treating health care provider whose record(s), and report(s) have been timely provided and whose testimony is limited solely to the contents of the records or reports provided. In the event that a treating physician or other treating health care provider is intending to testify as to matters not within the contents of the records or reports provided, then disclosure as an expert is required. This rule shall apply to all actions commenced after April 1, 1999 and to those commenced before that date where a Note of Issue has not been filed. Any motion by a party to preclude, or limit expert testimony under this rule, must be made as soon as

2 practicable but no later than forty five (45) days after the party s receipt of the expert disclosure or the motion will be waived. This rule does not apply to matrimonial actions. SECOND DEPARTMENT CASES REGARDING TIMING OF EXPERT DISCLOSURE Kopeloff v. Arctic Cat, Inc., 84 A.D.3d 890, 923 N.Y.S.2d 168 (2d Dep't 2011), Plaintiff filed Note of Issue and Certificate of Readiness in April. In August the defendant moved for summary judgment. In opposition the plaintiff submitted an affidavit from an expert not previously disclosed pursuant to CPLR 3101(d)(1)(i) defendant moved for summary judgment dismissing the complaint. In opposition, plaintiff submitted an affidavit by an expert whom he had not previously disclosed pursuant to CPLR 3101(d)(1)(i). The supreme court rejected plaintiff s expert affidavit as untimely and granted defendant s motion, noting that the plaitniff failed to provide any excuse for failing to identify the expert in response to the plaintiff's discovery demands,. The Court also noted that the record indicated that the expert had been retained approximately eighteen months prior to the submission of his affidavit and therefore, the rejection of the expert's affidavit based upon the timing of the disclosure was appropriate. Lombardi v. Alpine Overhead Doors, Inc., 92 A.D.3d 921, 939 N.Y.S.2d 528 (2d Dep't 2012). The Second Department affirmed the trial court s granting of defendant s motion for summary judgment dismissing after the trial court refused to consied the plaintiff s expert affidavit as the expert was not identified by the plaintiff until after the note of issue and certificate of readiness were filed attesting to the completion of discovery, and the plaintiff did not provide any excuse for failing to identify the expert in response to the defendant's discovery demands. Thus, based upon the cases above, one should be cognizant of the timeliness of the disclosure of an expert in the Second Department and should take care that they are disclosed prior to the filing of a note of issue and certificate of readiness. If a note of issue and certificate of readiness is filed prior to the retention and disclosure of experts a defendant should move to vacate the note of issue or potentially risk being from precluded from calling experts based upon the untimeliness of their disclosure. II. DISCLOSURE OF EXPERT WITNESSES IN FEDERAL COURT Expert witness disclosure is governed by Rule 26 of the Federal Rules of Civil Procedure. Rule 26 requires the identity of any witness who may be used to present expert testimony at trial be disclosed. This disclosure even extends to physicians and any witness whose duties as an employee of the party regularly involve giving expert testimony. This disclosure also extends to expert witnesses who are not required to provide an expert report such as treating physicians and employees of a party who do not regularly provide expert testimony. Rule 26 requires that expert witness retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony must disclose a report prepared and signed by the expert witness containing their opinions and basis for such. More specifically, this report must contain: A complete statement of all opinions to be expressed;

3 The basis and reasons for the opinions; The data or other information considered by the expert witness; Exhibits the expert intends to use as a summary or support for the opinions; The expert witness' qualifications within the preceding ten (10) years; The amount of compensation the expert will receive for the study and testimony; and A list containing any other cases within the in which the expert has testified at trial or by deposition within the preceding four (4) years. The timing of expert disclosure is encompassed in the uniform pretrial scheduling order issued following the Rule 16 pretrial conference. III. FEDERAL RULES OF CIVIL PROCEDURE RULE 26 Disclosure of Expert Testimony. (A) (B) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report prepared and signed by the witness if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) (ii) (iii) (iv) (v) (vi) a complete statement of all opinions the witness will express and the basis and reasons for them; the facts or data considered by the witness in forming them; any exhibits that will be used to summarize or support them; the witness's qualifications, including a list of all publications authored in the previous 10 years; a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and a statement of the compensation to be paid for the study and testimony in the case.

4 (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (i) (ii) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and a summary of the facts and opinions to which the witness is expected to testify. (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made: (i) (ii) at least 90 days before the date set for trial or for the case to be ready for trial; or if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure. (E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e). IV. RECENT AMENDMENTS TO FRCP 26 Rule 26(a)(2) was amended in 2010 to require disclosure regarding expected expert testimony of those expert witnesses not required to provide expert reports and limit the expert report to facts or data (rather than data or other information, as in the current rule) considered by the witness. Rule 26(a)(2)(C) was added to mandate summary disclosures of the opinions to be offered by expert witnesses who are not required to provide reports under Rule 26(a)(2)(B) and of the facts supporting those opinions. This disclosure is considerably less extensive than the report required by Rule 26(a)(2)(B). A witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705. Frequent examples include treating physicians or other health care professionals and employees of a party who do not regularly provide expert testimony. Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure required under Rule 26(a)(2)(C). The (a)(2)(c) disclosure obligation does not include facts unrelated to the expert opinions the witness will present. Disclosure of expert witnesses in federal court is straightforward and laid out in Rule 26. After the exchange of expert reports, the parties have the opportunity to depose their adversary's experts. This is an important and drastic departure from New York's CPLR, which does not give a party to depose an adversaries witness as of right. Rule 26 effectively allows for a party to notice and depose and adversaries expert witness, thus giving them the opportunity to flush out the opinions and basis for such which the expert will offer at the time of trial. This also allows the parties to set the stage for a motion

5 to preclude an experts testimony if their opinions or methodology behind such fail to meet the standards set forth by US Supreme Court's decisions in Daubert v. Merrel Dow Pharmaceutical Inc. and Kumho Tire Co., Ltd. v. Carmichael. V. FEDERAL RULES OF EVIDENCE Federal Rules of Evidence Rule 104(a) sets forth that it is the Court s responsibility for determining any preliminary questions regarding whether a witness is qualified or evidence is admissible. FRE 104(a) States: In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. Federal Rules of Evidence Rule 702 specifically governs the testimony to be given by witnesses who are qualified as an expert and sets forth the general criteria for determining if a witness can be qualified as an expert. FRE 702 States: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) (b) (c) (d) the expert s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case. VI. ADMISSIBILITY OF EXPERT WITNESS TESTIMONY The admissibility of expert witness testimony and evidence in federal court has evolved and changed dramatically during the past nine years as a result of the US Supreme Courts decisions in Daubert v. Merrel Dow Pharmaceutical Inc. and Kumho Tire Co., Ltd. v. Carmichael. However, long before Daubert, Kumho, and their subsequent progeny, Frye v. US, was the controlling standard for the admissibility of expert testimony and remains the standard in New York State today. A. THE Frye TEST Frye was a criminal matter in which the defendant was charged with murder. During the trial, the defendant, Frye, attempted to introduce evidence of a systolic blood pressure deception test, a crude precursor to the polygraph test, through the scientist who preformed the test. This offer of proof showed that Frye s innocence was confirmed by his unwavering blood pressure during questioning. The trial court excluded the evidence. The Court of Appeals of the District of Columbia affirmed.

6 The Court of Appeals reiterated the well established rule that expert testimony is admissible if it will assist the trier of fact to understand the evidence which is out of the realm of the understanding of the ordinary layperson. However, the Court of Appeals went on to hold that while courts will go along way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs. Since the systolic blood pressure deception test had not gained such general acceptance, evidence of it was properly excluded. The Frye test gained widespread acceptance among state and federal courts, as courts examined proposed expert opinions and methodologies to determine whether they had achieved general acceptance within the field of expertise at issue. The Frye standard stood as the standard for determining the acceptance of expert testimony for 70 yrs., until of course, Daubert v. Merrel Dow Pharmaceutical, Inc.. However, in New York State Courts the Frye Standard still reigns supreme. In 1994, the New York Court of Appeals, addressed another case involving "novel" scientific evidence. In March, 1994, the New York Court of Appeals decided People v. Wesley, 83 N.Y.2d 417, a criminal case in which the Prosecution sought admission of DNA profiling evidence to connect the defendant with the crime. The Court reaffirmed that the standard of admissibility under Frye was:...whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally. (83 N.Y.2d 417, 422) In its opinion, the Court noted the United States Supreme Court decision of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, which was decided only one year earlier, however, the Court of Appeals declined to adopt the Daubert standard. In Wesley, Judge Smith writing for the majority stated:...the modern trend in the law of evidence has been away from imposing a special test on scientific evidence and toward using the 'traditional standards of relevancy and the need for expertise'. (83 N.Y.2d 417, 426; citing McCormick Evidence 203 at ) In a concurring opinion Chief Judge Kaye states: The Court is unanimous, moreover, in concluding that three inquiries are involved in the consideration of novel scientific evidence. The first the Frye hearing asks whether, theoretically, the accepted techniques, when performed as they should be, generate results generally accepted as reliable within the scientific community. Once a scientific procedure has been proved reliable, a Frye inquiry need not be conducted each time such evidence is offered. Courts thereafter may take judicial notice of reliability of the general procedure. Chief Judge Kaye found that the Frye standard "emphasizes counting scientists' votes, rather than on verifying the soundness of a scientific conclusion' " (Wesley, 83 NY2d at 439 [citation omitted] [Kaye, Ch.J., concurring]). Note that Frye only applies to Novel scientific proof and where the proof offered in no longer or never was thought to be novel well established case law provides the rules of foundational proof and admissibility. VII. RECENT NEW YORK CASES WHICH INVOLVE THE APPLICATION OF THE FRYE STANDARD Parker v. Mobil Oil Corp., (16 A.D. 3d 648, 793 N.Y.S. 2d 434)

7 This case involved a claim by a gas station attendant that his exposure to benzene led to his development of leukemia. The Appellate Division held that the issue in the instant matter is to what extent the plaintiff was required to establish the precise level of his exposure to benzene in order to establish that his leukemia was caused by it through a scientifically reliable methodology. The Court went on to reference A scientifically reliable methodology that is recommended by the World Health Organization and the National Academy of Sciences for drawing a sound conclusion as to the relationship between an individual's disease and a specific factor suspected of causing that disease entails a three step process. And noted that this three step process includes: (1) a determination of the plaintiff's level of exposure to the toxin in question, (2) from a review of the scientific literature, proof that the toxin is capable of producing the illness, or general causation, and the level of exposure to the toxin which will produce that illness (i.e., the dose response relationship) must be ascertained, and (3) establishment of specific causation by demonstrating the probability that the toxin caused the particular plaintiff's illness, which involves weighing the possibility of other causes of the illness. The Court went on to find that Plaintiff s The studies upon which the plaintiff's experts relied ultimately reached the conclusion that increased levels of exposure to benzene have been shown to cause leukemia, a fact not disputed by the parties. However, the plaintiff's experts failed to make a casual connection, based upon a scientifically reliable methodology, between the plaintiff's specific level of exposure to benzene in gasoline and his AML. The Court ultimately held that it was evident that his experts did not use the three step process for establishing medical causation as set forth by the World Health Organization and National Academy of Sciences and that as plaintiff s experts failed to make a casual connection, based upon a scientifically reliable methodology, between the plaintiff's specific level of exposure to benzene in gasoline and his AML. The Court of Appeals in Parker v. Mobil Oil Corp 7 N.Y.3d 434; rejected the Appellate Division's requirement that the amount of exposure need be quantified exactly, however, concluded that the Appellate Division properly precluded plaintiff s experts as they failed to demonstrate that exposure to benzene as a component of gasoline caused the plaintiff s leukemia. The Court stated that in Parker there is no particular novel methodology at issue for which the Court needs to determine whether there is general acceptance. Thus the inquiry is more akin to whether there is an appropriate foundation for the expert s opinions, rather than whether the opinions are admissible under Frye. The Court found that one of plaintiff s experts assertions, based on the plaintiff s deposition testimony that he had "far more exposure to benzene than did the refinery workers in the epidemiological studies", was insufficient to establish causation, as it neither stated the level of the refinery workers' exposure, nor specified how the plaintiff s exposure exceeded it, thus lacking epidemiologic evidence to support the claim. While Frye continues to govern the admissibility of Novel scientific proof in NY State Courts, Federal Courts have adopted the Daubert standard. Daubert V. Merrel Dow Pharmaceutical, Inc. 509 us 579 (1993). Daubert involved the prenatal ingestion of an anti nausea drug, Bendectin, by the mothers of the two infant plaintiffs. The plaintiffs claimed that the ingestion of Bendectin, which was marketed by the defendant, caused severe birth defects. The defendant moved for summary judgement contending

8 that Bendectin does not cause birth defects and that the plaintiffs can not come forth with any evidence to the contrary. In support of its motion for summary judgement, the defendant submitted an expert affidavit establishing that there has never been a published study linking Bendectin to birth defects. The plaintiffs opposed defendant s motion with eight expert affidavits concluding that, regardless of the lack of published studies, Bendectin can cause birth defects. The conclusions of plaintiffs experts were based upon test tube and animal studies. The district court granted the defendant s motion for summary judgement finding that the plaintiff s expert evidence was inadequate to defeat the defendant s motion since the test tube and animal studies which formed the basis of plaintiff s expert opinions were not generally accepted within the field of epidemiology. The Court found the evidence to be inadmissible under the Frye general acceptance test. The Ninth Circuit subsequently affirmed and the Supreme Court granted certiorari. The Supreme Court held that the then 70 year old Frye, General Acceptance test used to determine the admissibility of expert scientific testimony was superceded by the Federal Rules of Evidence. The Court determined that proposed expert scientific evidence must be evaluated by the liberal construction of FRE 702. FRE 702, entitled Testimony by Experts, states that If scientific, technical or otherwise 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. The Supreme Court held that trial courts must act as gatekeepers in order to determine and ensure that proposed scientific expert testimony and evidence is both relevant and reliable. In doing so, the Court set forth 4 factors trial courts should consider in determining the admissibility of expert scientific evidence: 1) Whether the proposed theory or technique can be, or has been, tested; 2) Whether the proposed theory or technique has been subjected to peer review and publication; 3) Consideration of the known, or potential rate of error and; 4) Whether the proposed theory or technique is generally accepted in the scientific community (ie. the Frye test) The Supreme Court stressed that the trial court s inquiry is a flexible one and that these 4 factors is not a definitive checklist. With this in mind, the Supreme Court vacated the Ninth Circuits judgement and remanded the case for further proceedings consistent with its opinion. On remand the Ninth Circuit reaffirmed their earlier decision, holding that the plaintiff s experts proof does not meet the requirements of FRE 702. Inevitably, the next issue which arose regarding expert opinion was whether the trial courts gatekeeping role extended to all expert testimony and not just that which was scientific in nature.

9 Kumho Tire Co., Ltd. v. Carmichael (526 US 137). In Kumho Tire, the plaintiffs minivan crashed, killing one and severely injuring others as a result of an alleged tire malfunction. The plaintiff s commenced a products liability action against the tire manufacture and distributor, defendant Kumho Tire, alleging that the blow out was the result of a defect in the tire. The plaintiff s case hinged on the acceptance of their expert testimony regarding tire failure analysis. Plaintiff s expert intended to testify that upon a visual and tactile inspection of the subject tire and upon the theory that in the absence of at least two of four specific physical symptoms indicating tire abuse, a tire failure such that occurred in this matter was caused by a tire defect. Defendants, Kumho Tire, moved to exclude plaintiff s expert testimony on the ground that the methodology employed by their expert failed to meet Rule 702's reliability requirement. The district court agreed with Kumho Tire that it should act as a Daubert type reliability gatekeeper even though the proposed expert testimony could be considered technical as opposed to scientific. The district court examined the expert s methodology under the Daubert factors and granted Kumho s motion to preclude the experts testimony as well as their accompanying motion for summary judgement. The 11 th Circuit reversed the district court erred as a matter of law by applying Daubert since the Supreme Court explicitly limited its holding in Daubert to cover scientific testimony, rather than testimony where an expert relies upon skill or experience based observation. The Supreme Court reversed the 11 th Circuit s decision, holding that the trial court s gatekeeping obligation established in Daubert applies to all expert testimony. The Supreme Court further stressed that the 4 factors set forth in Daubert are not the only factors to be considered by the trial court, explaining that there are many different kinds of experts, and many different kinds of expertise. It is the job of both plaintiff and defense counsel to suggest to the court the factors they believe should be applied when determining if an experts testimony should be allowed pursuant to FRE 702 and the Supreme Courts subsequent rulings in Daubert and Kumho. It should be kept in mind that judges may not have extensive knowledge regarding the scientific and engineering practices at issue. With that in mind, it becomes the attorneys job to educate the court as much as possible so that they may properly perform their gatekeeping role. The true purpose of which is to make sure that egregious or untested theories are kept out of the courtroom, so as not to taint the jurys minds and their deliberations with speculative and unproven testimony. In light of the Kumho Tire decision, litigators are beginning to re examine their cases to identify potential Daubert issues. Many types of litigation, once thought not to invoke Daubert principles are now subject to Daubert challenges. VIII. RECENT DECISIONS APPLYING THE DAUBERT AND KHUMO STANDARDS The following cases examples of recent decisions which deal with the issue of expert preclusion under the standard set forth by Daubert.

10 General Electric Co. v. Joiner, 522 US 136 (1997) Claim that alleged exposure to PCBs contributed to plaintiff s lung cancer was rejected by the court as unfounded holding that while trained experts commonly extrapolate from existing data, there is nothing in either Daubert or the Federal Rules of Civil Procedure requiring a district court to admit opinion evidence which is connected to existing data only by the experts ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the date and opinion proffered. Donnell v. Ford Motor Co., 80 FSupp2d 45 (1999) Plaintiff s fuel ignition expert precluded from testifying due to inability to explain methodology and speculative nature of the opinon. Brooks v Outboard Marine Corp., 234 F3d 89 (2000) Teenagers hand was amputated by an uncovered motor on a motor boat. The manufacturer of the boat was sued under the theory of an alleged design defect. Plaintiff s expert offered testimony that either a propeller guard or a kill switch would have averted the accident. The Court excluded the expert, noting that he (1) had never seen the actual boat or motor either in person or in photos, (2) had never spoken to either of the boys involved in the accident, (3) was unaware of the dimensions of the boat and placement of the seats in relation to the motor, (4) did not know precisely what happened or where the boys were positioned in the boat, and (5) never attempted to reconstruct the accident and test his theory. Amorgianos v. National Railroad Passenger Corp., 303 F3d 256 (2002) Bridge painter brought a suit against the bridge owner to recover for injuries to his nervous system allegedly sustained as a result of exposure to pain fumes while spraying in a contained area. Plaintiff's retained an industrial hygienist to testify regarding the solvent concentration the plaintiff was exposed to. Plaintiff's also proposed plaintiff's treating physician testify that plaintiff's injuries to his nervous system resulted from short term exposure to paint solvent. Court determined that plaintiff's industrial hygienist be precluded from offering testimony because he failed to employ his own methodology reliably. Plaintiff's expert testified that evaporation rate of a solvent from the paint depended on a certain variables and then failed to include those variables in his calculations. The Court concluded that plaintiff's experts failure to apply the proper method for determining concentration rendered his opinion unreliable. The Court also excluded plaintiff's treating physician's opinion regarding causation of plaintiff's ailments as there was too great an analytical gap between the conclusions of the author's articles cited by plaintiff's treating physician and the conclusions she drew from their work. Rypkema v. Time Manuf. Co., 263 FSupp 2d 687 (2003) The operator of aerial lift bucket injured in a fall while attempting to enter the bucket brought a products liability suit against the bucket manufacturer. Plaintiff's retained a licensed engineer to opine that the latch design on the door of the aerial bucket was defective.

11 Defendant moved to dismiss the complaint for failure of proof based upon the inadmissibility of plaintiff's expert. The Court excluded plaintiff's expert's testimony as he failed to reconstruct the accident, did not propose an alternative latch nor evaluate the feasibility of an alternative latch. Plaintiff's expert also failed to opine as to how an alternative latch would have prevented the accident. Defendant's motion to dismiss was granted based upon failure of proof give that plaintiff's only expert's testimony was deemed inadmissible. To save time, trouble, and expense further down the road, it is imperative that when choosing an Expert you routinely review whether the Expert: is qualified in the area in which they are testifying is studied in the research and theories in their field has tested their theory has a theory that is generally accepted in the relevant community has tested the product at issue/ examined the scene of the incident is familiar with the facts and circumstances of your case has reviewed the records/ documents in your case has applied their method or theory to the situation in your case If the expert meets these criteria there should be little concern that he or she will not be permitted to testify for not meeting the standards established by not only Frye, but also Daubert and Khumo. IX. MOTIONS IN LIMINE/MOTIONS TO PRECLUDE