Sample Motion in Limine under Daubert

Transcription

1 Sample Motion in Limine under Daubert IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF XXXX XXXX DIVISION Smith Corporation, Jones, Inc. et al. v. Plaintiff, Defendants. No. CXX-XXX PLAINTIFF S MOTION IN LIMINE TO EXCLUDE DR. DOOLITTLE S TESTIMONY First of all, I m not saying that I m an expert in anything. (Doolittle Dep. 116:14 15.) Plaintiff Smith Corporation ( Smith ), by its attorneys, hereby moves this Court in limine to exclude the testimony of Defendants purported expert witness, James Doolittle. In support of this motion, Smith states as follows: 1. Defendants will offer James Doolittle as an expert witness to testify as to whether the printing presses manufactured by Jones for sale in the United States are technically and commercially interchangeable with Jones presses designed for use in Japan. (Doolittle Rep. 2.) Doolittle should not be permitted to offer this opinion testimony because: (1) he fails to qualify as an expert on this subject under the standard set forth in Federal Rule of Evidence 702; and (2) Doolittle did not even write his own report it was written for him by Jones s lawyers. 2. Defendants claim that Doolittle qualifies as an expert based solely on his personal knowledge of Jones presses and his experience as a professional user and purchaser of newspaper printing presses. (Id. 4.) Doolittle admits, however, that he has only been involved in the purchase of newspaper printing presses or components on four occasions. (Doolittle Dep. 35:7-36:4.) And, it has been almost twenty years since he was last responsible for the purchase of a press from Jones. (id. 193:11 14.) He concedes that he has never authored any publications in the last ten years, holds no patents, and has never testified as an expert at a trial or deposition. (Doolittle Rep. 5; Doolittle Dep. 109:23 110:1.) Moreover, he does not claim to possess any academic background in a field relevant to the subject matter of his testimony (Doolittle Dep. 104:14 107:24), and he holds no academic degrees at all (id. 104:17 18). Indeed, Doolittle denied that he held himself out to be an expert in any particular subject (Id. 104:14 16); does not claim to be an engineer (id. 105:11 13); and, when asked if he would hold himself out as an expert in this case, he responded I have no plans to hold myself out for anybody. I m not looking for a job... (id. 107:21 22). 3. While a witness may qualify as an expert based only on experience, the proponent of the witness still bears the burden of establishing the Rule 702 admissibility requirements by a preponderance of the evidence. See Advisory Committee Notes to FRE 702; Krueger v. Johnson & Johnson Prof l, Inc., 160 F. Supp. 2d 1026, 1030 (S.D. Iowa 2001). See also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, & n.10 (1993). Defendants have failed to do so. 4. Rule 702 permits the Court to admit expert testimony only if it meets three distinct but related requirements: (1) the evidence must be based on... specialized knowledge that is useful to the finder of fact in deciding the ultimate issue of fact; (2) the witness must have sufficient expertise to assist the trier of fact; and (3) the evidence must be reliable or trustworthy. Kudabeck v. Kroger Co., 338 F.3d 856, 859 (8th Cir. 2003). 152 Appendix_1.indd 152

2 Appendix 153 [E]xperience-based expert testimony is reliable if the expert explain[s] how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how the experience is reliably applied to the facts. United States v. Vesey, 338 F.3d 913, 917 (8th Cir. 2003) (quoting from Advisory Committee s Notes to Rule 702, which also observe that [a]n opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist ). 5. In particular, the expert s experience must be evaluated in reference to the subject matter of the proposed testimony. If the witness s practical knowledge does not provide the requisite expertise in the area on which he or she is asked to offer an expert opinion, the witness s testimony must be excluded. See Garnac Grain Co. v. Blackley, 932 F.2d 1563, 1566 (8th Cir. 1991) (affirming district court s decision to exclude two witnesses who lacked formal training and had limited practical knowledge and experience in subject area of proffered expert testimony). See also Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, (8th Cir. 2001) (finding that opinion testimony offered outside scope of expert s expertise was unreliable and thus inadmissible). 6. Here, although Doolittle was a long-time employee of newspapers using Jones s presses in the United States, his experience bears no relationship to his proposed testimony on the comparability or interchangeability between Jones s presses manufactured for the U.S. market and Jones s presses manufactured for the Japanese market. 1 While Doolittle may have experience dealing with presses designed for use in the United States, he has no real experience understanding presses designed for use in Japan nor in comparing presses in Japan to their U.S. counterparts. 7. In fact, he admitted that he cannot recall most of his visits to Japan, and thought that over the past thirteen years the number of times he visited Japan was [m]aybe three approximately. (Doolittle Dep. 110:20 111:19.) Even during these trips, he merely observed Jones s Japanese presses. (Id. 111:20 23.) Moreover, he did not observe the Japanese presses for the purpose of comparing the components of Jones s presses manufactured for the U.S. market with those for the Japanese market. In fact, he claimed no expertise concerning presses in the Japanese market: (Id. 116:11 15.) Q. Do you claim to be an expert on large newspaper printing presses and their components as designed for the Japanese market? A. First of all, I m not saying that I m an expert on anything. 1 The only time Doolittle even claimed to have superior knowledge to a layperson was about the Jones press and the Smith press as to how they compare with each other. (Doolittle Dep. 108:19 24.) However, Doolittle s opinion testimony will purportedly concern a different subject, comparing a Jones press in Japan to a Jones press in the United States. (Jones Trial Witness List 18; Doolittle Rep. 2.) Appendix_1.indd 153

3 154 Daubert v. Frye: Admissibility of Expert Testimony 8. It is not surprising that Doolittle s comparability analysis does not arise as a natural product of his experience. Doolittle worked for purchasers of U.S. presses, 2 not Japanese presses. His limited, subjective perceptions of Japanese presses on occasional visits to Japan from the framework of a U.S. purchaser do not endow Doolittle with the necessary expertise on the characteristics of Japanese presses. Thus, even if Doolittle might qualify as an expert on the components of U.S. presses, he would only possess half the requisite expertise to conduct a comparison with Japanese presses. 9. Therefore, Doolittle s opinion is not supported by a reliable foundation. Doolittle is not the proper witness for Defendants to have chosen to opine on the comparability of U.S. and Japanese-Jones presses. Because Doolittle fails to pass muster under FRE 702, this Court should find that his testimony is inadmissible. 10. Tellingly, Doolittle admitted that he did not even write his expert report. Rather, he met with Defendants attorneys at his house for about three hours on Saturday, July 26, (Id. 10:15 18; 1:21 23.) A few days later, Doolittle received a complete draft of his report written by these attorneys. (Id. 7:16 8:2.) Although Doolittle made some light edits to the attorneys draft, he conceded that including waiting time he spent no more than six hours working on this case. (Id. 6:11 7:8.) In fact, Doolittle s final expert report still bears the internal stamp of the electronic document management system of Defendants attorneys. (Compare Doolittle Rep. at 1 with the briefs filed by Perkins Coie in this case at 1.) 11. Moreover, a week before his meeting with Defendants attorneys including Mr. Saito Doolittle received a letter from Mr. Saito explaining Defendants position in this case concerning the commercial interchangeability of presses. (Id. 211:23 212:17; 213:21 214:11.) Mr. Saito also sent Doolittle a draft of the report of Tanaka, Defendants proffered engineering expert in this case. Doolittle conceded that his report (written by Defendants attorneys) is largely the same as the Tanaka draft report sent to him by Mr. Saito: (Id. 215:16 22.) Q. Would it be fair to say that there is some overlap between the opinions that this draft report [of Tanaka] Exhibit 249 contained and what your report states? A. Is there an overlap? If you are saying that they both saying [sic] the same thing, yes, in a way I would say they are. 12. By Doolittle s own admissions, he did not prepare his own report; Defendants attorneys did. Even then, Doolittle did not spend more than three hours reviewing the report before adopting it. In addition, Doolittle volunteered that the report said essentially the same thing as a draft report previously shown to him by Defendants attorneys. Thus, independently of Doolittle s lack of relevant expertise, Doolittle should be barred from testifying because his report is nothing more than Defendants attorneys view of the issue. See, e.g., Trigon Ins. Co. v. United States, 204 F.R.D. 277, 294 (E.D. Va. 2001) ( if the opinions expressed in an expert report are not the opinions of the expert, the expert will not be able to satisfy the requirements of Fed.R.Ev. 702 and Daubert that the report be based on the expert s own valid reasoning and methodology. ); Stein v. Foamex Int l, Inc., No. Civ. A , 2001 WL , *5 (E.D. Pa. Aug. 15, 2001) (although counsel may assist in the preparation of a report, Rule 26(a)(2)(B) does not contemplate blanket adoption of reports... prepared by counsel or others.... ) (citation omitted); In re Jackson Nat l Life Ins. Co. Premium Lit., No. 96-MD-1122, 2000 WL , *1 (W.D. Mich. Feb. 8, 2000); Manning v. Crockett, No. 95 C 3117, While Doolittle claims to have some experience operating presses, his experience was limited to the presses in the United States, and even then, he never held a job as a press operator nor was even assigned to a press crew. (Doolittle Dep. 110:8 19.) Appendix_1.indd 154

4 Appendix 155 WL , *3 (N.D. Ill. May 18, 1999) ( assistance of counsel contemplated by Rule 26(a)(2)(B) is not synonymous with ghost writing. ); Baxter Int l, Inc. v. McGaw, Inc., No. 95 C 2723, 1996 WL , *4 (N.D. Ill. March 27, 1996) (court disregarded testimony of expert where expert did not independently prepare his expert report, allowing himself to be a mouthpiece for [the] attorneys. ). 13. Here, the situation is remarkably similar to the one faced by the Jackson Nat l Life court. There, the court barred plaintiff s expert, Mr. Bieluch, from testifying and explained: The record clearly supports the finding that the language of Mr. Bieluch s report, including the formulation of his opinions, was not prepared by him, but was provided to him by plaintiff s counsel. Granted, Rule 26(a)(2) contemplates some assistance of counsel in preparation of an experts report. However, undeniable substantial similarities between Mr. Bieluch s report and the report of another expert in an unrelated case, demonstrate counsel s participation so exceeding the bounds of legitimate assistance as to negate the possibility that Mr. Bieluch actually prepared his own report within the meaning of Rule 26(a)(2). In re Jackson Nat l Life, 2000 WL at *1 (citation omitted). Likewise, this Court should bar Doolittle from offering his expert opinions. WHEREFORE, Plaintiff Smith International Corporation respectfully requests that the Court bar Defendants from offering expert testimony of James Doolittle. Dated: Respectfully submitted, One of the Attorneys for Plaintiff Appendix_1.indd 155

5 Sample Motion in Limine under Frye IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF XXXX XXXX DIVISION John Q. Smoker, v. Big Tobacco, Inc. et al. Plaintiff, Defendants. No. CXX-XXX DEFENDANT S MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY RELATED TO PLAINTIFFS RESTITUTION MODEL This motion seeks to exclude from evidence all expert testimony related to the statistical model Plaintiffs experts have constructed in support of their claim for restitution. Plaintiffs model fails the Kelly-Frye test for the admissibility of scientific evidence because it is based on novel methodologies that are not generally accepted in the relevant scientific community. Plaintiffs experts departed from established practice in the field of survey research by basing their model on a non-probability sample a group of people who volunteered to take surveys over the Internet rather than a group selected at random from the general population. The very expert who conducted the survey admitted that the use of a non-probability sample was a departure from established practice and that there is not a generally accepted way to project the survey s results to the class. Plaintiffs experts also failed to follow any generally accepted methodology in calculating willingness to pay. They claim to have calculated the willingness to pay of the representative class member. (Ex. 4, Jones Report at pp ) But their calculation does not actually reflect the willingness to pay of any class member, let alone all class members. (Ex. 2, Jones Dep. at p. 74:19 23.) Instead, it is a fictional composite created by splicing together data from various different respondents to the Internet survey. (Ex. 4, Jones Report at pp ; Ex. 2, Jones Dep. at pp. 76:18 78:3.) The methodology was made up for this case and finds no acceptance in any scientific community. (See Ex. 8, Expert Report of Peter E. Rossi, Brown et al. v. The American Tobacco Company, Inc. et al. (Sept. 4, 2012) ( Rossi Report ) at pp ; Ex. 6, Wecker Report at pp ) Plaintiffs Model Does Not Satisfy The Kelly-Frye Standard For Admissibility Plaintiffs expert testimony regarding the model should be excluded because the model fails the Kelly-Frye test for the admissibility of novel scientific evidence. First, as Plaintiffs own expert conceded, Plaintiffs model is based on a survey methodology that is not generally accepted in the relevant scientific community. Second, Dr. Jones s ad hoc methodology for calculating the willingness to pay of the representative class member has not been accepted in any scientific community and is demonstrably flawed. A. Plaintiffs Model Is Based on a Survey Methodology That Is Not Generally Accepted in the Relevant Scientific Community As Plaintiffs expert Dr. Smith admitted, the established practice for valid survey research over 50 years has been to survey a probability sample. (Ex. 7, Smith Dep. at p. 168: ) Probability samples are drawn at random from the broader population to which the survey s results are to be projected. As Dr. Smith observed in a report he co-authored for 156 Appendix_1.indd 156

6 Appendix 157 the Association for Opinion Research ( AOR ), probability samples are the only samples that can be projected to a broader population. (See Ex. 16, AOR Report at p. 3.) The distinguishing features of a probability sample are that every individual in the target population (e.g., the plaintiff class) has a chance of being selected for the survey and the probability of any individual being selected is known. 1 The fact that everyone has a chance to be selected ensures that the sample covers the entire population. (Ibid.) Knowing the probability that an individual will be selected allows the results to be projected to a broader population. (Ibid.) In constructing their model, Plaintiffs experts admittedly did not follow this established practice for valid survey research. Instead, they based the model on a non-probability sample of ABC Lights smokers who had previously volunteered to take surveys over the Internet. (See Ex. 2, Jones Dep. at pp. 146:7 16; Ex. 7, Smith Dep. at pp. 73:9 25.) Dr. Smith admitted that the model s use of a non-probability sample is a novel scientific methodology an innovation and departure from... traditional methods. (Ex. 7, Smith Dep. at pp. 144:9 23; see also Ex. 16, Report at p. 3 ( [N]onprobability panels... represent a substantial departure from traditional methods. ).) Because Plaintiffs model is based on a novel scientific methodology, testimony regarding the model is not admissible unless Plaintiffs show that the methodology is generally accepted in the relevant scientific community. (People v. Leahy (1994) 8 Cal.4th 587, ) Plaintiffs cannot make this showing. Their own expert, Dr. Smith, conceded that there is no generally accepted methodology for using a non-probability sample to provide estimates applicable to a broader population: Q. When you have a blended sample, like you have here, of a nonprobability and a probability panel, is there a methodology that s generally accepted in the survey research field for projecting the results of results of the survey to a general population? A. I think it would overstate things to say generally accepted by survey research experts. I think this field s evolving. Q. So as of now, at least, in the end of 2010, there s no generally accepted method for projecting the results of a blended survey, like you used here, to another population? A. You know, with which is different from saying, you know, there s no method at all. I mean, I think, you know, it s just I think a a function of the relative newness and novelty of this approach is why there is not a generally accepted way to do it. (Ex. 7, Smith Dep. at pp. 184:13 185:20 (italics added).) Dr. Smith conceded that this statement was not only true with respect to projecting the survey s results to the general population but that it applies... just as much to the population [he] targeted here. (Id. at p. 194.) Dr. Smith s concessions are fatal to the admissibility of any evidence regarding Plaintiffs model. The Kelly-Frye test requires that the methodology on which an expert bases his opinion must be generally accepted in the relevant scientific community. Because Plaintiffs model is based on a novel survey methodology that their own expert admitted is not generally accepted in the relevant scientific community, expert testimony regarding the model is inadmissible under Kelly-Frye. B. Plaintiffs Experts Did Not Follow an Accepted Methodology in Estimating the Willingness to Pay of the So-Called Representative Class Member Dr. Jones also employed a novel methodology in using the results of the Internet survey to calculate the 42.3% willingness-to-pay estimate that ultimately is used to produce Plaintiffs 1 (See, e.g., Report, at Appendix_1.indd 157

7 158 Daubert v. Frye: Admissibility of Expert Testimony classwide restitution figure. In the prior class action, Johnson, Dr. Jones s willingness-topay estimate reflected the average willingness to pay of the participants in the Internet survey in that case. As discussed above, Dr. Jones calculated the willingness to pay of each individual survey participant by comparing the utility the individual received from the health risks of ABC Lights relative to ABC Reds to the utility the same individual received from the price discounts offered in the survey. He then reported the average willingness to pay as his estimate for the class as a whole. (See Ex. 11, Jones Johnson Report at pp ) Dr. Jones used a different methodology here. In this case, he identified the survey respondent whose utility from the health risks of ABC Lights relative to ABC Reds was the median in the sample and the survey respondent whose utility from price discounts was the median in the sample, and compared the utilities of the two. (Ex. 4, Jones Report at pp ) Although Dr. Jones characterized the result as the willingness to pay of the representative class member (ibid.), he admitted that it does not actually reflect the willingness to pay of any class member or even any actual person. (Ex. 2, Jones Dep. at pp. 76:18 78:3.) He further conceded that his representative class member is a purely fictional composite cobbled together from different respondents in the Internet survey. (Ibid.) Dr. Jones did not identify any conjoint analysis or other study that had used the methodology he used to calculate a willingness to pay. (See Ex. 4, Jones Report at pp ) As defense expert Dr. Whitehat explained, there is no justification for Dr. Jones s methodology from either an economic or statistical point of view. (Ex. 8, Whitehat Report at p. 17.) In splicing together data from different survey respondents, Dr. Jones violated accepted practice in the field of conjoint analysis and produced an incorrect estimate of consumers willingness to pay. (Id. at p. 17 fn. 15.) Using an example, Dr. Whitehat explained the fallacy of Dr. Jones s methodology of mixing and matching different respondents preferences: I will use the taste attribute to illustrate the basic reason why Professor Jones s procedure is invalid. Imagine that there are two groups of consumers: Group A strongly prefers the taste of Lights to Reds, and Group B strongly prefers the taste of Reds to Lights. If Group A and Group B are of similar size, then Professor Jones would construct a representative consumer who is indifferent between the taste of Lights and Reds. Professor Jones would erroneously conclude that the same respondents don t care about taste. Of course, this completely misrepresents the consumer population. There are, in fact, very strong preferences regarding the taste of cigarettes, but there are also differences between consumers as to which taste (Lights or Reds) they prefer. (Id. at p. 18.) The only defense Dr. Jones could offer for his ad hoc methodology was that Dr. Anderson requested a willingness-to-pay estimate that applied to the representative class member, even though Dr. Anderson never explained what he meant. (Ex. 2, Jones Dep. at pp. 12:8 21.) Dr. Jones could not say what the representative class member was intended to be, other than by defining it tautologically as someone who represents the class. (Id. at pp. 12:22 24.) Nor could Dr. Jones identify any objective test for comparing his approach to other methodologies for measuring willingness to pay; the best he could do was to say that he would use intuitive correspondence i.e., his own subjective judgment. (Id. at pp. 239:11 17.) Dr. Jones s intuitive correspondence provides an insufficient basis to admit testimony regarding Plaintiffs model into evidence. The methodology he used to calculate the willingness to pay of the representative class member is not accepted in any scientific community. It would also violate due process to use Dr. Jones s representative class member estimate to calculate restitution because it provides Plaintiffs with the unconstitutional practical advantage of being able to litigate not on behalf of themselves but on behalf of a perfect plaintiff pieced together for litigation. (Broussard v. Meineke Disc. Muffler Shops, Appendix_1.indd 158

8 Appendix 159 Inc. (4th Cir. 1998) 155 F.3d 331, ) Accordingly, expert testimony related to Plaintiffs model should be excluded. CONCLUSION For the foregoing reasons, the Court should exclude expert testimony (1) from Drs. Smith and Jones regarding their survey and statistical model for calculating the amount of restitution Plaintiffs seek in this case. Respectfully submitted, One of the Attorneys for Defendant Appendix_1.indd 159

9 CHECKLIST FOR RETAINING A TESTIFYING EXPERT WITNESS Ladd Hirsch, Esq. 1. Conduct Due Diligence Review articles authored by expert Review previous cases involving similar topic(s) Review previous deposition and trial testimony Seek information from professional network re: knowledge of expert 2. Perform Internal Assessment Run conflicts check Follow up on all replies re: knowledge of expert 3. Conduct Detailed Resume Check Note any discrepancies 4. Legal Research Regarding Admissibility Consider type of case (scientific or not) and standard in jurisdiction Consider education and background of experts qualified in this field Compare expert s credentials with those admitted to testify Consider expertise and whether it is germane to issues in case 5. Meet with Potential Expert Discuss note-taking procedures Give broad overview of case Assess appearance and demeanor Elicit experience and knowledge Discuss any resume discrepancies uncovered Resolve discrepancies, if possible 6. Ask Tough Questions Before Retaining the Expert Has the expert s testimony been excluded/limited by a court? Has the expert ever failed to be qualified? Have expert s opinions been subject to any written opinion? Has expert been opposed before to other side s expert? Consider expert s personal life is there anything negative? Does the expert have any substance abuse issues? Is the expert going through a contested divorce? Has the expert ever been a party in any litigation? Has the expert ever been sued by a client or former client? Has the expert ever been subject to any criminal proceedings? Has the expert ever been accused of breach of fiduciary duty? Has the expert ever been fired from any position? Has the expert ever been charged with sexual harassment? 7. Discuss Estimated Fees and Litigation Budget Determine expert s hourly rates (and staff rates) Agree upon range of estimated fees (total and each phase) Do not confirm estimated range or budget in writing Get assurances in the form of an oral commitment 160 Appendix_1.indd 160

10 Appendix Draft Retention Letter or Review Expert s Draft Scope of specific assignment is outlined No conclusions or opinions are stated Hourly fee and pay-as-you-go specified No budget estimate is given Specify that payment is not contingent on outcome Consider having lawyer or firm designated as client Thoroughly read and review entire letter Appendix_1.indd 161

11 CHECKLIST FOR OPPOSING EXPERT DISCOVERY 1. Obtain Necessary Information Have what you need to make a decision: a. Expert interrogatories b. Subpoena the expert s file be sure you get all of it c. Expert report 2. Determining a Strategy Do you even depose the expert? a. Reasons for taking a deposition (discovery, freeze testimony, admissions and potential impeachment, observation and assessment of expert) b. Reasons for not taking a deposition (expense, report may be adequate, education of expert regarding your lines of attack) c. As with any deposition, decide on main purpose (summary judgment, settlement, or trial ammunition) Do you videotape? Does your expert attend? 3. Preparation Become the Expert Know the case law a. Reliability requirements of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 119 S. Ct (1999). Daubert directs district courts to consider the following factors, where applicable, to determine reliability: (a) can and has the methodology been tested; (b) has the methodology been subject to peer review and published; (c) whether there is a low potential rate of error and the existence of controlling standards; and (d) has the methodology been accepted in the relevant scientific community. b. Kumho Tire stated, however, that the reliability factors set forth in Daubert do not necessarily apply in all cases and the district court has broad latitude in determining the reliability of the expert testimony. Back to college a. Work with your consultant/expert (1) Will point out weaknesses in opponent s conclusions and suggest (2) Can provide learned treatises that support your expert (3) Can recommend subject matter reading for you b. Learn the field! (1) Read up on specific area of field your expert can help c. Learn the expert report (1) Federal court requires one, some states do not (2) Review all material expert considered in formation of opinion i. Review responses to your expert s opinion ii. Review draft reports (if any) why were changes made? (3) Must understand expert s opinions you are not ready for the deposition until you do! Research the expert use Internet, online legal research tools, and other firms d. Past cases (1) Past testimony may be inconsistent with current testimony (2) Not being qualified as a witness (3) Bias (dependent for living, dependent upon industry, etc.) 162 Appendix_1.indd 162

12 Appendix 163 e. Background (1) Curriculum Vitae may be exaggerated/inaccurate (2) Prior public controversy/criticism (3) Possibility of criminal record f. Financial bias review retention letter 4. Preparing for the Deposition In preparing for deposition a. Exhibits sophisticated exhibits v. simple charts b. Some things may best be left for cross-examination at trial Deposition outline c. Review difficult documents d. Review hypothetical questions e. Mock cross-examination 5. The Deposition Goals draw a box, gain admissions, gain impeachment a. Pay close attention to what the expert actually says (1) Do NOT allow expert to avoid question with confusing language (2) Close the door on opinions Draw a box around the expert s opinions b. For each opinion reached (1) Bases for each opinion? [exhaust list] (2) Assumptions made in reaching each opinion i. Steps taken to validate assumptions ii. The What ifs If this assumption were wrong/different, how would it affect opinion? c. Other than opinions in report, what other opinions have you arrived at? d. Other work to be done on this case (1) If work is not complete, exhaust list of work to be done i. Best to do work before reaching an opinion? ii. How will various results affect your opinion? Admissions e. Recognition of other experts in field (1) May recognize your expert (2) Recognition of treatises that may be used for cross-examination f. Flaws in assumptions that may lead to invalid opinions g. Data not considered in reaching opinions h. Admissions regarding other methodologies and opinions that are reasonable and room for intellectually honest differences Impeachment i. Qualifications as expert (1) Why are you an expert? i. Education, certifications, past experience ii. Journals read, board memberships, publications/lectures, honors and awards (2) Disciplinary actions (3) Degrees/certifications not obtained (4) Past testimonial experience Ever not qualified as an expert? Appendix_1.indd 163

13 164 Daubert v. Frye: Admissibility of Expert Testimony j. Is actual experience in the correct field? k. Financial Bias (1) Hourly rate, bills on case, etc. (2) Prior employment by a party (3) Prior testimony l. Other infinite potential areas for impeachment m. Time spent on this work? (too much, not enough) 6. Conclusion Before closing deposition a. Review in mind/notes what expert actually said (1) Is it good enough? leave it alone (2) Or, is there a hole in your questioning go back b. Is there additional work to be done? Order transcript Appendix_1.indd 164

14 Interrogatory No. 1: Sample Expert Interrogatories State the full name(s), address(es), and occupation(s) or profession(s) of each witness who may be called at the trial of this case to testify to opinions on your behalf. Response: Interrogatory No. 2: With regard to each opinion witness disclosed in Interrogatory No. 1, state the following: a. The subject matter upon which the witness is expected to testify; b. Each and every opinion and conclusion upon which the witness is expected to testify; c. Each and every basis of the opinions and conclusions disclosed in answer to (b) above; d. The witness qualifications, including, but not limited to educational background, practical experience in the area he/she is expected to testify in, any articles and papers he/she has written, and any/all seminars or post-graduate training he/she has received, his/her experience, if any, as a teacher or lecturer and his/her professional appointments and associations. (In lieu of answering, a complete curriculum vitae of the witness may be attached to the answers to interrogatories); and e. If all or any portion of the information sought in (a), (b), or (c) above is contained in any report of said witness, produce said report in its entirety. Response: 165 Appendix_1.indd 165