By Daniel P. Dain

How to Prepare for Deposition

Excerpted from How to Prepare for, Take and Use a Deposition

Goals and Strategies

The deposition of an expert witness is the culmination of the opposing party’s defense or prosecution theory of the case. Before taking an expert’s deposition, the parties should have completed fact discovery—interrogatories answered, documents obtained, lay witnesses deposed. Presumably, your opponent’s expert witness has been advising the opposing attorney about documents to be requested in the course of written discovery and about oral discovery questions that should be asked of the lay witnesses, so that the fact evidence necessary to the expert’s opinions has been established. The expert’s opinions are being offered by the opposing party as part of a plan to defeat your case. Deposing your opponent’s expert ­witness is your opportunity to understand, limit and hopefully stop defeat. The importance of being prepared to depose this expert ­witness cannot be overemphasized.

As the attorney who is preparing to depose an expert witness, you must be certain of your objectives for taking the deposition. Your basic purpose for deposing the expert should be twofold: 1) to determine the expert’s opinions and conclusions, and 2) to undermine or limit the impact of the expert’s opinions and conclusions. Beyond your basic purpose, the goals of your oral deposition of the expert should include the following:

  • To determine whether the expert is qualified to render an opinion;

  • To determine whether the expert has knowledge and understanding of the case related factual evidence;

  • To determine whether the expert has made any alternative assumptions about the factual evidence which is necessary to support his opinions;

  • To determine whether the expert admits any facts, assumptions or theories of your case;

  • To determine whether the expert has a reasonable basis for his opinions;

  • To determine whether the expert has relied upon accepted scientific methods and techniques for his opinions;

  • To determine whether the expert has reasonably relied upon any hearsay evidence to support his opinions;

  • To determine whether the expert has either authored or acknowledged any authoritative texts or documents on the subject of his opinions or conclusions;

  • To lock in the expert’s testimony and assure that the expert does not later offer any undisclosed opinions;

  • To determine whether, if any of the facts as the expert understands them were changed, the expert would change his or her opinions.

Do not take an opposing expert’s deposition until you have a firm outline and strategy for accomplishing your goals with the expert witness; otherwise, you are not likely to have any success either undermining or limiting the impact of the expert. For example, in a medical negligence case your deposition outline for the expert’s qualifications may be designed to establish that, although he is a well-recognized surgeon, he has never written, lectured or performed the surgical procedure at issue. Or, in an automobile negligence case, your strategy may be to establish the accident reconstruction expert’s causation opinion is impossible or improbable by using photographs, eyewitness deposition testimony or other materials. Lastly, your plan for the expert’s deposition may include hypothetical questions, containing facts and assumptions which you can prove at trial, that will undermine the expert’s opinions and ultimately win your case. The point is that you must have an outline and a strategy for your deposition of an expert. If you have deposed an opposing expert based on a thoroughly prepared outline and strategy, then you should leave the deposition knowing how you will deal with the expert at the time of trial.

Commonly used expert witnesses and the types of cases in which you will encounter such experts include the following:

  • Accident Reconstruction: automobile cases, products liability cases;

  • Architects: construction site accidents, premises liability cases;

  • Engineers: products liability cases;

  • Medical experts: medical malpractice, all personal injury cases;

  • Economists and forensic accountants: damages in any personal injury or commercial case;

  • Appraisers: valuation of real or personal property.

In order to prepare an outline of an expert’s deposition, you must have completed some preliminary research and written discovery.

§610A  Legal Research of Issues

In order to be prepared to depose an expert witness, you should know the legal elements of your case. Although you may rely upon memory of the law for a simple auto case, you should not do so in more complicated cases, such as a products liability case alleging an alternative design or a medical negligence case alleging delay in diagnosis of cancer. For example, if you do not understand the ­intricacies of design analysis and how your jurisdiction applies the existing law which is applicable to design defect cases, then your preparation from document requests to authoritative literature may get off track. You may also not develop the appropriate line of questions for the opposing expert regarding the prima facie ­elements of your case.

Your research should also include knowledge of the evidentiary issues that would apply to expert testimony. For example, in a state jurisdiction: does the Frye orDaubert standard apply to expert opinions, or some hybrid of both? Does the jurisdiction allow authoritative texts as substantive evidence?

§620A  Written Discovery of Expert Witness Opinions

Rule 26(a)(2) of the Federal Rules of Civil Procedure provides that the opposing party must disclose the identity of any expert witness. The mandatory disclosure must include, among other things, the following:

  1. A complete statement of all opinions and conclusions to be expressed by the expert witness;

  2. The basis and reason for each opinion;

  3. The data or other information considered by the expert in formulating the opinions;

  4. The exhibits to be used as a summary in support of the opinions;

  5. The qualifications of the witness;

  6. A list of publications authored by the expert within the preceding 10 years;

  7. A list of any cases, within the last four years, in which the expert has testified at trial or deposition; Smith v. State Farm Fire & Casualty Co., 164 F.R.D. 49, 52-53 (S.D. W.Va. l995).

Keep in mind that under Fed. R. Civ. P. 37(c)(2), a party is not ordinarily permitted to elicit in direct examination expert testimony not disclosed in accordance with Rule 26(a)(2)(B). Thus, if you are the party making the expert disclosure, make sure that you have disclosed the full extent of the expert’s opinions.

If you are in a state jurisdiction which does not have mandatory disclosure requirements, you may still have the opportunity to gather information about the expert through interrogatories.

Sample:      Interrogatory to Identify Expert Witness and Opinions

[CASE CAPTION]                CASE NO:

                              INTERROGATORIES TO

Pursuant to Fed. R. Civ. P. 33, (name of party) is requested to answer the following interrogatories, under oath and within thirty days from service hereof.

[Number]. State the name and business address for each person who may be called as an expert witness at trial. In addition, for each person identified, provide:

(a) A complete statement of all opinions to be expressed, including the basis and reasons for the opinions;

(b) A description of all data and information the expert considered in formulating the opinions set forth in subparagraph (a);

(c) A complete statement of the expert’s qualifications;

(d) A list of all publications authored by the expert within the preceding ten years;

(e) The compensation to be paid to the expert for preparation and testimony;

(f) A list of all cases in which the expert has testified as an expert at trial or deposition within the preceding ten years.

Dated: ___________                                 [SIGNATURE]        

                                                      Attorneys for _____________

Practice Tip: Mandatory Disclosure and Treating Doctors

Although Rule 26(a)(2)(A) will require the disclosure of all persons expected to provide expert testimony at trial, not all experts are required to provide the mandatory report under Rule 26(a)(2)(B). This is especially true where the “expert” is the plaintiff’s treating doctor.

          If the treating physician’s opinion is acquired directly through the treatment of plaintiff, the treating physician cannot be forced to prepare and file the required report. See, e.g., Elgas v. Colorado Belle Corp., 179 F.R.D. 296, 298 (D.Nev. 1998) (a treating physician’s opinion on matters such as causation, future treatment, extent of disability and the like, are part of the ordinary care of a patient, and she may testify to such opinion without being subject to the extensive reporting requirements of Rule 26(a)(2)(B)). See alsoSullivan v. Glock, Inc., 175 F.R.D. 497, 501 (D.Md. 1997); Hall v. Sykes, 164 F.R.D. 46, 48 (E.D. Va. 1995); Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993).

However, when the doctor’s opinion extends beyond facts disclosed during the care and treatment and is specifically retained to develop opinion testimony, the physician is then subject to the report provisions. Brown v. Best Foods, A Division of CPC Intern., Inc., 169 F.R.D. 385, 387 (N.D. Ala. 1996); Salas v. U.S, 165 F.R.D. 31, 33 (W.D.N.Y. 1995). However, a review of medical records of another in order to render an opinion on the appropriateness of care and treatment will trigger the reporting requirements. Wreath v. United States, 161 F.R.D. 448, 450 (D. Kan. 1995).

In most state jurisdictions, the disclosure rules are similar. See, e.g., Illinois Supreme Court Rule 213(g) requiring that party disclose all opinion witnesses, including their qualifications, subject matter of testimony, opinions and the bases thereof.

§621A Expert Witness Document Discovery

You should also review the local rules applicable to expert witness disclosure and the methods available to obtain a complete document production of the expert’s file contents and materials which he has reviewed or relied upon to formulate his opinions. Federal Rules of Civil Procedure 34 provides that a party may request documents from the opposing party. This procedure is applicable to the expert who is an employee of a party, such as the in-house design engineer for a defendant manufacturer. Rule 45(b) of the Federal Rules of Civil Procedure provides for the production of documents from a person who is not an employee expert of a party by means of a subpoenaduces tecum which commands the production of the expert’s documents relating to the case. No matter what the status of the testifying expert witness is, you must make a written document request for the expert’s file, which should include:

  1. Curriculum vitae or resume of the expert’s qualifications;

  2. Notes and reports made by the expert;

  3. Photographs, videotape or other visual media of the persons or objects involved;

  4. Test data made or reviewed by the expert;

  5. Transcripts of fact witness depositions taken in the case;

  6. Witness statements obtained in the case;

  7. Published literature or text books relied upon or consulted by the expert;

  8. Correspondence between the expert and counsel for the opposing party; and,

  9. Time and billing records of the expert for the case.

  10. Drafts of any reports prepared by the expert, including any written comments provided thereon by any counsel, party, or other individual who read any draft.

  11. Transcripts of any testimony given by the expert in any prior deposition or court proceeding over the past four years (as identified in the Fed. R. Civ. P. 26(a)(2)(B) disclosure).

  12. 12. Copies of publications from the past 10 years (as identified in the Fed. R. Civ. P. 26(a)(2)(B) disclosure).

The opposing party’s written discovery disclosure of the expert’s opinions and the documents that he has relied upon to formulate the opinions should give you a roadmap to begin preparing for the expert’s deposition. If you do not obtain this information before the deposition, you will be driving blindly into the expert’s territory and will lose control of the deposition.

§622A Expert Work Product

The information acquired by an expert that was not obtained in anticipation of trial is subject to discovery. Fed. R. of Civ. P. 26(b).

Many attorneys are unaware of the limited scope of privilege, if any, that applies to discussions with and documents given to expert witnesses. See §762.2. Hence, inquiry into all ­documents—preexisting exhibits, letters and memos from the attorney, as well as discussions between the expert and the attorney—may prove fruitful.

The grounds for such inquiry include that the expert may have been given information verbally or in documentary form that affects his opinion, which has not been disclosed, or otherwise affects his credibility.

The scope of privilege that applies to statements made to or documents given to an expert witness is unsettled. Generally, only the work product privilege is considered. At one extreme, it has been held in essence that all communications from the attorney to the expert concerning the subject of the expert’s opinions are discoverable.See Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384 (N.D. Cal. 1991).

On the other hand, some courts hold that only “factual” information may be discovered. An excellent article on the subject is by Werder and Marquardt, “Disclosure to Expert Witnesses and Work-Product Protection: The Erosion of Bogosian,” 7, No. 5 Trial Practice 3 (Sept./Oct. 1992.)

If your case is subject to the mandatory expert disclosures embodied in Rule 26(a)(2)(B), you may well be entitled to the discovery of information provided to the expert that would otherwise be subject to privilege. Rule 26(a)(2)(B) mandates that all of the “data or other information considered by” an expert witness in forming his or her opinions must be disclosed. The 1993 Advisory Committee note states, “given [the] obligation of disclosure, litigants should no longer be able to argue the materials furnished to their experts to be used in forming their opinions are … protected from disclosure when such persons are testifying or being deposed.”

As a result, under these mandatory disclosure requirements, the Rules imply that there is an automatic waiver on counsel-supplied materials or information, with the limited exception of attorney-expert mental impression communications protected under the attorney work product privilege. See Joseph, Expert Disclosure, 164 F.R.D. 97 (1995).

Even though the famous decision in Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3rd Cir. 1984), provided for work product protection from disclosure, many courts have ruled that documents provided to an expert are discoverable whether or not they constitute work product. Opposing counsel’s work product contained in the expert’s file may be discoverable. This can include notes, correspondence, abstracts of the case or theories, mental impressions or strategies. In re Air Crash Disaster at Stapleton Int’l Airport, 743 F. Supp. 1442 (D. Colo. 1988). You should insist your opponent disclose if any work product privilege is being asserted over a part of the expert’s file documents. Know whether there are documents that you have not been provided. At the time of the deposition of the expert you should inquire about any materials that the opposing counsel provided to the expert, and you should remember to inquire which documents, if any, have been removed from his file on the basis of privilege. This inquiry will tell you whether the opposing party complied with your original request to produce the expert’s documents. Keep in mind, of course, the old adage, applicable so often in the discovery context, that what is good for the goose is good for the gander (also sometimes stated, what is sauce for the goose is sauce for the gander). In other words, before you insist on the other side producing communications with testifying experts and draft expert reports, make sure that you will be comfortable reciprocating. Because the extent of permitted expert discovery is so often an issue in cases, it is a good subject for discussion and agreement between counsel very early in the case before conflicts arise.

Similar to work product provided by counsel to the expert are preliminary drafts of the report, including those with written comments from counsel. The 1993 Advisory Committee note to Fed. R. Civ. P. 26(a)(2)(B) provides that the Rule:

does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this assistance may be needed. Nevertheless, the report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness.

While this note makes clear that counsel may assist in the preparation of an expert’s report, the Rule does not prohibit discovery into the assistance provided by counsel to the expert in the preparation of the report. Securing a draft expert report initially written by counsel or procuring deposition testimony that counsel was heavily involved in the preparation of, while not a basis for striking the report, can be used to undermine the credibility of the conclusions in the report before the trier of fact.

Thus, as part of your expert discovery game plan, you may want to request copies of preliminary drafts of the expert’s report, particularly any with written comments by counsel, as well as asking the expert during his or her deposition about counsel’s role in the preparation of the report. But, again, keep in mind that if you endeavor to seek discovery of counsel’s involvement in the preparation of your opponent’s expert reports, you will likely see similar discovery requests in return. It may be safest before either side’s experts begin their analysis to talk with opposing counsel about ground rules for drafts and work product.

§622.1A    In-House Experts

Sometimes, the best, or at least most appropriate, expert to testify on a particular trial issue happens to be an employee of your client. Whether to work with a client-expert is a strategic decision involving balancing the benefits of a particular individual’s expertise versus the risk of losing the veneer of impartiality that the trier of fact may perceive from a non-party expert witness.

The retention of an in-house expert does, however, create tensions between the attorney-client privilege and Rule 26(b) disclosure obligations discussed in the preceding section. This tension was not fully explored in Clark v. Gen. Motors Corp., 1975 U.S. Dist. LEXIS 12095 (D. Mass. 1975), a case that permitted liberal discovery from a testifying in-house expert. In that case, defense counsel instructed the witness-expert not to answer questions falling within the area of the witness’s expertise. Plaintiff moved to compel. The court granted the motion, stating that, “we hold that where the expert is also an employee, whether he is to be called as a witness or not, he is subject to being deposed on any and all relevant matters.” Id. at *18. Because defense counsel had cut off all examination, the court in Clark was not presented with some of the nuances of this issue. What are some of the permutations? If the in-house expert communicates early “drafts” of his or her opinion to counsel, that is probably discoverable. If the in-house expert communicates underlying facts of which the individual has personal knowledge to counsel, those underlying facts would be discoverable, although any commentary about those facts provided to counsel likely would be privileged. Facts communicated by counsel to the in-house expert for the purpose of permitting the individual to form an expert opinion would probably be discoverable. Legal advice communicated by counsel to the in-house expert related to the litigation, but not necessarily to permit the individual to form an expert opinion, likely would be privileged.

A slightly different wrinkle is where the employee of the client is consulted without an intention of calling the individual to testify on the subject of the consultation and then the other side notices the deposition of the employee and asks questions about that consultation. In general, these employees are afforded the protections of Rule 26(b)(4)(B) and the attorney-client privilege. See In re Shell Oil Refinery, 132 F.R.D. 437, 441-42 (E.D. La. 1990); Eli Lilly & Co. v. Commissioner of Revenue, No. 6702-08, 1997 Minn. Tax LEXIS 26 (Minn. Tax Ct. Apr. 24, 1997); see also James R. Pielemeier, Discovery of Non-Testifying “In-House” Experts Under Federal Rule of Civil Procedure 26, 58 Ind. L. J. 597 (Fall, 1983).

Interestingly, Fed. R. Civ. P. 26(a)(2)(B) draws a distinction between “a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony” and a party employee-witness who may be designated to give expert testimony but whose regular employment does not involve giving such testimony. Under the rule, a written report is required of the former, but not of the latter.

§622.2A    Asking Expert Opinion Questions of Lay Witnesses

A somewhat different issue is how to deal with questions to a lay fact witness asking for what amounts to expert opinion. The majority rule appears to be that the defending attorney should object to the questions, but permit the witness to answer. See, e.g., Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 1998 WL 2829 (S.D.N.Y. Jan. 6, 1998) (“Insofar as [defending] counsel instructed [the witness] not to answer certain questions because the questions called for expert opinion, these instructions were in error”). If the deposing party then tries to introduce the answers into evidence at trial, the defending party should then move to exclude the testimony or to strike those portions of the deposition transcript that contain the improper expert opinion testimony. See, e.g., Freedom Wireless, Inc. v. Boston Communications Group, Inc., No. 00-12234-EFH, 2005 U.S. Dist. LEXIS 8190 (D. Mass. May 2, 2005) (striking lay opinion testimony from deposition transcript offered to the jury).

Some courts have blessed instructions not to answer questions that call for lay opinion testimony under a broad reading of Fed. R. Civ. P. 30(d)(4) or its equivalent, but admonished counsel who did not then follow the rule and immediately suspend the deposition for purposes of seeking court intervention. See, e.g., Dean Foods Co. v. Pappathanasi, No. 01-2595 BLS (Mass. Super. Ct. June 8, 2004).

§623A The Expert’s Preservation of Evidence

The courts favor the preservation of evidence so that the parties have an equal opportunity to inspect and rely upon the evidence in support of their case. Nonetheless, an expert witness who is unfamiliar with the litigation process will sometimes perform destructive testing to a product or lose evidence, such as original x-rays. Depriving a litigant of the opportunity to inspect tangible evidence has dire consequences. Even though the destruction or loss of evidence may have been innocent, the courts will impose a sanction which bars the expert’s testimony or even enter a judgment in favor of the opposing party. See, e.g., Marroco v. General Motors Corp., 966 F.2d 220 (7th Cir. 1992). For purposes of preparing for the expert’s deposition, your written discovery should inquire whether the expert has performed any testing which destroyed all or part of the evidence provided to him by the opposing party and the type of testing performed. You should further inquire about the chain of custody of the evidence he received to establish that it has not been altered and that none of it has been lost by the expert.

After you have obtained the complete written expert opinion disclosures, the expert’s documents, test data and inspections, and resolved any privilege assertions, you can effectively begin to outline the oral deposition examination of an expert witness.

§630A  General Outline of Expert Deposition

Under the modern rules governing expert witness testimony, the expert witness at trial may literally jump from his qualifications to his opinion. He need not explain the basis or rationale for his opinion. However, in a deposition of an expert, you should not make this jump with him. Instead, your outline should start with the expert’s qualifications. Next, you should move through the history of the expert’s involvement with the case in a chronological manner, including his review of documents and depositions provided, tests and inspections performed, authoritative texts and documents considered, understanding of the facts and circumstances of the case, scientific methods and techniques utilized, the basis for his opinions and lastly, his opinions. Remember that there are four major parts to any expert’s deposition:

  1. The expert’s qualifications;

  2. The facts upon which the expert based his opinion;

  3. The analysis and assumptions the expert made; and

  4. The expert’s opinion.

§631A Qualifications Under Federal Rule of Evidence 702

Under Federal Rule of Evidence 702, the party offering the testimony of an expert witness must show that that the expert is qualified to render an opinion or conclusion relevant to the case. State jurisdictions require a similar showing of qualification before the expert witness will be allowed to testify. The opposing party’s witness is not an expert simply because he claims to be. In Re Paoli RR PCB Litigation, 916 F.2d 829, 855 (3rd Cir. 1994). The proponent of the expert’s testimony has the burden to show that the witness has sufficient specialized knowledge which will assist the jurors in deciding the particular issues in the case. Smelser v. Northfolk Southern RR Co., 105 F.3d 299, 303 (6th Cir. 1997). Under Rule 702, an expert witness must be qualified by knowledge, skill, experience, training or education; otherwise, his testimony will be barred due to lack of qualifications. For example, in Berry v. Crown Equipment Corp.,108 F.Supp. 743 (E.D. Mich. 2000), the plaintiff’s expert was barred from testifying about defects in a forklift design, because his qualifications were not within the scope of the product engineering and testing at issue. The expert had not designed a forklift, had not tested the forklift in question, and did not hold an engineering degree making him capable of designing a forklift. Similarly, in Moore v. Ashland Chemical, 151 F.2d 269 (5th Cir. 1998), the court affirmed the trial judge’s exclusion of a well credentialed pulmonologist’s causation opinion because he did not have any prior experience diagnosing or treating a patient with the type of lung injury that was allegedly caused by exposure to the defendant’s chemical Toluene. The Moore court also noted that the expert had not conducted any research on the effects of Toluene exposure and lung damage or obtained knowledge or experience to qualify him to render an expert opinion. The rulings by the courts in Berry and Moore, and cases like them, are important for the concept of nexus—that there must be a connection between the proffered expert credentials and the specific subject on which the expert hopes to opine. Just because the other side has disclosed an expert with a ten page curriculum vitae does not mean that the expert is immune from attack on the expert’s qualifications to offer the opinion on the subject pertinent in this case. You should pay particular attention to the nexus between the disclosed expert’s qualifications and the specific subjects of the opinions when the other side tries to use a single expert to opine on multiple topics. For example, if a plaintiff has retained a forensic accountant to opine on the measure of damages, the accountant may be qualified to do the math on the damages, but not to opine as to how a particular business works. These are all avenues for deposition inquiry.

Rule 702 and related cases on expert qualifications cases are instructive for the type of focus that you should maintain when preparing to interrogate the expert concerning his qualifications at his deposition. Your job is to test the expert’s qualifications to testify on the subject matter at issue. You want to compare the expert’s knowledge and experience to the narrow subject matter of the opinions that the opposing party has disclosed. For example, applying Rule 702 to an expert’s qualifications in a medical negligence case that alleges improper surgical technique for cardiac bypass surgery, your inquiry concerning the expert’s qualifications should be organized as follows:

•     Education

—  Did the expert witness receive the same or similar formal ­education as the defendant, regarding the surgical procedure performed?

—  Has the expert witness ever attended any lectures or seminars in which the surgical procedure was discussed or demonstrated?

•     Training

—  Did the expert witness undergo a surgical residency in which the surgical technique involved was taught?

—  Has the expert witness assisted any surgeons who performed the surgical technique involved?

—  Who taught the expert witness how to perform the surgical procedure in question?

•     Experience

—  Has the expert witness ever performed the surgical procedure involved?

—  If so, how many times has he performed the surgical procedure?

—  Has the expert witness encountered the similar adverse complications when performing the same surgical procedure?

•     Skill

—  Does the expert profess to have a particular skill in the surgical procedure by virtue of his knowledge, education, training or experience?

•     Knowledge

—  Has the expert performed research regarding the surgical technique involved?

—  Has the expert ever lectured or written about the surgical procedure involved?

—  Has the expert ever taught the surgical procedure in question?

—  Has the expert reviewed the surgical procedure as performed by many other similar surgeons?

By focusing your deposition questions narrowly upon the subject matter of the surgical procedure at issue, you will establish that the expert is either: 1) qualified to render the opinion, or 2) subject to exclusion from testifying based on lack of qualifications (your questions in this area may at least establish lack of weight or credibility to his opinions). Too many attorneys waste time in a deposition asking numerous questions about the expert’s general background or unrelated medical activities and not enough questions about the expert’s specific qualifications on the subject matter involved. Stay focused. If you have narrowly but adequately explored the expert’s qualifications on the subject matter involved, then you will know whether the substance and validity of the opposing expert’s opinions and conclusions are a concern to your case.

§632A Impeachment of Qualifications

After your questioning has tested the expert’s foundational qualifications to render an opinion, you should also be prepared to ask questions which lay the foundation to attack the expert’s qualifications on other grounds. Your goal is to establish bias, self-promoted financial interest, disciplinary problems, lack of veracity, etc. This preparation should include the following areas of inquiry:

  • Whether he has testified before (especially on the subject at issue). If so, obtain courts, dates, and jurisdictions, as well as depositions for any such prior testimony (the expert may have previously testified in a contrary manner).

  • Whether any court has ever refused to certify him as an expert at trial.

  • Whether he has been recognized in any journals or periodicals in his field and whether he has published in any.

  • Whether there are recognized professional associations in his field and whether he is a member, officer, or instructor for any.

  • Whether his expertise is taught anywhere or is a part of any recognized curriculum.

  • Whether he feels that the facts of the case are beyond the ken of ordinary jurors such that a person of special knowledge, skill, or education must explain them.

  • Licensing or professional accreditation

—  any suspensions or revocations

—  board certifications, repeats of board examinations

—  whether he has ever been sued or undergone disciplinary proceedings with respect to professional activities

  • Publications and research

  • Whether the expert has submitted any articles for publication that have been rejected.

  • Professional organizations

  • Prior experience as an expert

—  titles of lawsuits and courts

—  percentage of time spent as an expert witness

—  percentage of income derived from such activity

—  whether he testifies on plaintiff’s or defendant’s side

  • Prior engagements working with opposing counsel

  • Who assisted him in reaching his opinions

§632.1A    The Expert’s Process for Preparing the Expert Report

As noted, there is no prohibition in counsel or others assisting the expert in preparation of the expert’s report and Rule 26(a)(2)(B) disclosures. Nevertheless, a jury may be less apt to afford considerable weight to the conclusions of an expert crafted in part by others. Therefore, it is often worth inquiring into the expert’s process for preparing his or her report; you may want to add to your deposition examination outline questions along the following lines:

  • What was your process for preparing your expert report?

  • Did your process for preparing your report in this case differ from your process in preparing any written expert reports you have done in other cases? If so, how?

  • What documents did you review?

  • Who did you talk to and what was said?

  • Who did the actual writing of the report?

  • Who else helped with the preparation of the report?

  • How much total time did you spend preparing the report?

  • How many drafts were there?

  • Is your final written report shorter or longer than previous drafts? By how much?

  • Did you receive written comments from anyone?

  • Have you saved any of those drafts or written comments?

  • What changes did you make in response to any comments from others?

  • Did you reach any conclusions in connection with your retention as an expert that did not make it into your final written report? What are they?

  • Were you asked your opinion on any topics not addressed in your final written report?

  • [Showing the written report to the expert] Can you point out any language in the written report that are not your words/were written by someone else?

You may also want to inquire into the expert’s preparation for the deposition, keeping in mind yet again that any question you ask along these lines will likely be asked of your expert in return.

  • What did you do to prepare for your deposition?

  • How did your preparation differ from times you have been deposed in the past?

  • Who did you talk to?

  • What did you read?

  • Were you prepared by counsel for your deposition?

  • How many sessions were there?

  • How long did they each last?

  • Who else was present?

  • Were you shown any documents by counsel during your preparation? Which ones?

  • What did counsel tell you during these sessions?

  • What questions did you ask?

  • Did you discuss what questions you might expect during the deposition?

  • Did you discuss how to answer any particular questions?

  • Did you discuss how to answer questions about your qualifications? About your prior experience as an expert? About your process for preparing your expert report? About what documents you reviewed or to which individuals you talked? About what facts you were relying on and what facts you thought were not pertinent to your report? About your methodology? About your conclusions?

§633A The Expert’s Understanding of Case Related Facts

After fully exploring an expert’s relevant qualifications, you should explore the expert’s understanding of the facts and circumstances of the case at issue. This understanding should come from his review of the documents provided to him, including medical records, witness statements, incident reports, deposition transcripts, photographs, drawings, or the like. Your examination of the expert should pin down what materials he has received, what material he has reviewed, which documents he found significant, and how he is using the documents to form an understanding of the facts of the case or any variation on the facts of the case. Your goal is to determine whether the expert has developed a complete understanding of the facts and how he learned those facts. You will often be surprised to hear that the expert is relying on what the opposing party or his attorney has told him. The expert’s understanding of the facts should be developed from his independent review of the facts. This examination usually requires considerable questioning similar to the following:

  • When was the expert initially contacted by the attorney and what assignment was he given? What was he initially told of the facts? What reliance did he place upon those facts? What time did he spend in the initial consultation? What facts did he think were particularly important in the initial consultation?

  • What did the expert request from the attorney and why? What did he receive and when? What was important about the information he requested? What did he hope to receive or find in the requested materials?

  • When did he review the materials supplied to him? What did he learn of significance? How much time did he spend on the initial review? Did he feel he was in any way inadequate or unqualified after having read the materials?

  • After having studied the materials, did he recognize any inherent conflicts between the position he knew the lawyer wanted him to take and positions taken in other cases or studies? Had he ever testified against the attorney’s client or any industry groups of which the client is a member?

  • Did he make additional requests for information? What additional information did he need and why? What was becoming particularly important to him and why?

  • When did he first go to any “outside” sources and why? What were those sources, i.e., literature, peers, and other consultants, witnesses, police, his own staff, etc.? How did he begin to develop his model for further investigation? Did he determine he needed experiments, onsite visits, advance laboratory studies, photographic studies, further testimony from key witnesses, specimens, etc.; and, if so, why? What additional information did he need? What did he expect or hope further studies would show?

  • Is he aware of any conflicts or controversy within his profession or within the professional literature over his theory, approach, or model? If so, how did he deal with the controversy or, alternatively, why did he not take the controversy or conflict into account?

  • Was there any information which he felt he needed in order to reach any final opinions, but was unable to obtain? Was there information which he felt would be helpful or which he wished the attorney would have supplied him, but had to do without?

  • What experiments, inspections, or studies did he conduct? Did he discard any such studies as unnecessary, too costly, or unlikely to give the “right” answer? How much time was spent in these studies or experiments, and what was the involvement of the attorney in approving the studies or dealing with the results of such studies?

  • At what point did he decide he had enough information to begin finalizing his opinion? How did he proceed to finalize his opinion? What was the involvement of the lawyer in drafting the final opinions? Did he maintain any drafts of final reports? Are there other calculations, photographs, experiments which he conducted but which do not form the basis for his opinion? Did he rely upon any facts supplied by the attorney in finalizing his opinion? Are there general subject areas which at the beginning of his assignment he thought he would be investigating but which are not a part of his final opinions? In other words, did the expert find some “good” and some “bad” for the attorney and limit his opinions only to those areas helpful to the attorney’s cause?

  • Did he make preliminary findings, calculations, or studies which he discarded? Did he destroy any notes or studies? Did he communicate any such preliminary findings to the attorney?

  • Is his final opinion based solely upon facts he has been supplied and discovered, or is it also based upon assumptions which he has not tested? If so, why does he accept these assumptions? Where are they recognized as reliable or accepted?

  • Is he finished with his investigation? Is he prepared to express a professional opinion (where required, to a reasonable degree of medical certainty, etc.) as to his opinion? If not, what else must be accomplished and why? If the opinions expressed in the deposition are preliminary, when will he finalize the opinions and in what way will he supplement his preliminary opinions with a report, with a verbal communication to the attorney? Would he be willing to supply you directly with any supplementary opinions, studies, etc.?

§634A Differing Factual Assumptions

Your interrogation of the expert’s understanding of the facts should reveal to you whether he accepts the facts that your client has proffered or he has made a differing set of factual assumptions. If the expert has made a differing set of factual assumptions, you may want to ask the expert to assume the facts as your client or other witnesses have related them. This is a strategy decision. If you feel confident that your set of facts is likely to be true, you may want to save asking the expert witness a hypothetical question which changes the facts until the time of trial. It is much more difficult for an expert to respond and change his testimony at trial than between the time of his deposition and trial.

However, if you decide to proceed with hypothetical questions at the deposition, it is possible that the expert may reformulate his opinion in your favor. Conversely, it is also possible that the expert may explain to you that your differing facts could not possibly have occurred. If he does so, then make him tell you every reason your facts are impossible. It is much easier to regroup your case now as opposed to at the time of trial. Your outline should leave room to explore differing factual assumptions.

You may want to take a middle course and simply ask the expert if he or she had the benefit of certain facts while formulating the opinion. If the answer is no, and the jury later finds that those particular facts are material, then the jury is likely to discount any opinion without their benefit.

§635A Basis for Each Opinion of the Expert

The basis for an expert’s opinions usually takes place on several levels. The first basis is the expert’s knowledge and understanding of the case related facts. Your previous interrogation of the expert should have his understanding of the facts pinned down. The second basis is the expert’s knowledge and experience in the field, that is, his qualifications applicable to the set of facts. Of course, your previous interrogation concerning the expert’s qualifications may well serve you in limiting the expert’s knowledge and experience as the basis for his opinions. The third basis is the expert’s use of scientific methods and techniques to analyze the facts learned or any assumptions that he has made as the basis for his opinions and conclusions. Lastly, the fourth basis is the expert’s reliance upon accepted texts, standards or other documents to support his opinion. Some people consider a fifth basis for an expert’s opinion to be logic and common sense. Certainly whether common logic is considered a “basis” for the expert’s opinion, it is an area you may want to probe during the deposition. Do all aspects of the expert’s opinion hold up to a common sense scrutiny—put another way, when you peel off the trappings of fancy language and multiple professional degrees, is the opinion believable to a lay person? The best way to get at this is to try to restate the expert’s opinion in simple terms that show its fallacy and get the expert to agree with your characterization. The caveat of course is that you may decide to hold particularly good traps for trial.

You should remember that under Fed. R. Evid. 703 the expert witness can base his opinions not only upon facts or data that the opposing party intends to prove, but also upon facts or data which are neither admissible nor offered as evidence by that party. The only requirement is that the data be of the type “reasonably relied upon by experts in the field ….” Under 703 and under most state evidentiary rules, texts, literature and other writings, which would be otherwise considered inadmissible hearsay, may be admissible before the jury; provided that the evidence is reliable. This does not make the extrinsic evidence admissible per se. However, the expert witness can refer to materials before the jury—making such materials tantamount to admissible evidence. The logic is that the material is not being offered to prove the truth of the matter asserted, but merely as the basis for the expert’s opinion. This type of extrinsic evidence can take many forms. Nonetheless, trial judges do occasionally exercise independent judgment over whether the material upon which the expert has based his conclusions has been reasonably relied upon. See, e.g., Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996); Soden v. Freitliner Corp., 714 F.2d 498, 502-503 (5th Cir. 1983).

For example, a medical expert may rely upon laboratory findings contained in the plaintiff-patient’s medical chart and refer to the findings in front of a jury to explain the basis for his opinion on the proper diagnosis. An engineer may rely upon a building code provision in support of his opinion that an entranceway was defectively designed. An accident reconstruction engineer may rely upon witness statements to support the basis for his opinion on the cause of an accident. The reliability of laboratory evidence may be considerably greater than the eyewitness statements. In each example, with a proper foundation, the expert will be permitted to read or publish to the jury statements contained in documents upon which he is relying.

The types of hearsay materials upon which an expert may base his opinion include the following:

  • Learned Treatises: articles published in scientific or professional journals, medical or engineering textbooks, etc.

  • Trade publications: national, state or local building codes, etc.

  • Government records: statutes, rules, regulations, ordinances, etc.

  • Business records: medical records, witness statements, police reports, accounting records, etc.

  • Professional publications: standards, guidelines, policies or procedures, etc.

  • Litigation documents: deposition transcripts, interrogatory answers, affidavits, etc.

Of course, an expert for either the plaintiff or the defendant can use this type of evidence to support his opinion or conclusion. The plaintiff’s expert may rely on such evidence to conclude that negligence or a defective condition occurred. The defendant’s expert may rely upon such evidence to conclude that the conduct or product was safe. These types of documentary evidence can be very damaging and difficult to cross-examine, unless you have researched the documents and properly deposed the expert regarding the materials. Before the deposition, you need to know whether the documents are reliable. Your deposition questions for the expert should be designed to establish that the evidence is subject to dispute, scientific debate, or outright rejection.

After establishing and locking in all the bases for the expert’s opinion, you may then want to press as to whether changing any of those bases would lead the expert to change his or her opinion.

Similarly, to the extent the expert is relying on certain methodologies and your expert has relied on competing methodologies to reach different conclusions, you may want to try to get the expert to buy into the reasonableness of the methodologies followed by your expert.

§636A Scientific, Technical or Specialized Knowledge Under Federal Rule of Evidence 702

Once you have determined the expert’s understanding of the facts and the basis for his opinions, you need to determine whether he has used any scientific, technical or specialized knowledge to analyze those facts or generate support for his opinions. For example, in a tire blowout case, the expert may have used tire separation testing methods and techniques to determine whether the facts occurred in the manner claimed. The methods and techniques used by various experts to test a theory for the plaintiff or defendant has become the source of tremendous pre-trial motion controversy. Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S.579 (1993). Under Daubert, in preparing to depose the expert witness, your question preparation should include an analysis of whether the expert’s opinions or any analysis of the facts are based on reliable methods and techniques in his field. You should not dismiss the possibility that the expert’s opinion may be based on a flawed analysis or unaccepted methods, i.e. so-called “junk science.” At the expert’s deposition, if you have not carefully explored the validity of his methods, then you have nothing on which to base a motion in limine to exclude a harmful, but invalid, expert opinion concerning your case. The party proffering an expert’s opinions and conclusions has the burden of showing that the expert’s evidence is the result of reasonably reliable methods and techniques. The trial judges who preside in the federal courts and in many state courts are the “gatekeepers” who decide whether to admit or exclude novel expert testimony or opinions. The trial judge’s decision to admit or exclude an expert opinion, because the opinion is not scientifically based, is only reversible on appeal upon a showing of an abuse of discretion. General Electric Co. v. Joiner, 522 U.S.136 (1997). Under Joiner, if your deposition questioning of the opposing expert convinces the trial judge to exclude the expert’s testimony, your opponent will have a tremendous burden on appeal to reverse such a ruling.

The design of your questions concerning the validity and reliability of an expert’s opinions and conclusions should originate from the ruling in Frye v US, 293 F. 1013 (D.C. Cir. l923), a United States Supreme Court decision in which the “general acceptance” test for determining the admissibility of an expert’s use of novel or pseudoscientific evidence was adopted. Under Frye, the attorney deposing the expert witness wants to discover whether the expert’s theories, data, methods and principles are generally accepted by other experts in the same scientific field. Today, the attorney deposing the expert witness should be mindful that many state jurisdictions apply theFyre standard to the admissibility of novel expert witness testimony. E.g. Arizona: Logerquist v. McVey, 1 P.3d 133 (2000); California: People v. Leahy, 882 P.2d 321 (l994); Colorado: Brooks v. People, 975 P.2d 1105 (1999); Illinois: People v. Miller, 670 N.E.2d 721 (IL Sup. Ct.l996); New York:People v. Wernick, 674 N.E.2d 322 (N.Y. l996).

Interestingly, in Donaldson v. Central Ill.Pu. Serv. Co., 767 N.E.2d 314(Ill. 2002), the Illinois Supreme Court recently held that under Frye the “general acceptance” standard for scientific evidence does not require that a majority of experts in the field support the scientific technique proffered. There, the parents of children with neuroblastoma, a rare form of cancer, filed a negligence suit against the owner of a coal glasification plant. The plaintiffs called expert witnesses in the field of epidemiology who relied upon the scientific technique of extrapolation to support their opinion that exposure to coal tar from the plant had caused the cancer. The defendant objected that the extrapolation method was not generally accepted in the scientific community. Affirming the admission into evidence of this testimony, the Donaldson Courtexplained that the “general acceptance” standard does not mean universal acceptance of methodologies by a consensus or even a majority of experts. The relationship between coal tar and neuroblastoma has simply not been the subject of extensive study, the Court found, due to the rarity of the disease and ethical considerations of exposing humans to coal tar for research purposes. The Donaldson Court concluded that the experts called by plaintiffs extrapolated from similar, yet not identical, scientific studies and theories and that extrapolation from other studies and theories is sufficiently established to have gained general acceptance in these limited circumstances.

Under Frye, you should always ask the opposing expert the preliminary question: Are your opinions and conclusions based on theories or methods that have been generally accepted by others in your field? If the expert does not know the answer, then the opposing attorney cannot use the expert’s testimony to lay the foundation to admit the expert’s opinion testimony at trial. You will have won the deposition. If the expert answers “Yes,” then you should be prepared to force him to identify each source for his statement and the basis on which he has made that statement.

After Frye, the Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) clarified and strengthened the criteria required to admit expert opinion testimony based on scientific matters. The Daubert Courtheld that the general acceptance test enunciated in Frye had been supplanted by the Federal Rules of Evidence. Later, in Kumho Tire Co. v Carmichael, 119 S. Ct. 1167 (1999), the Court announced that the Daubert criteria for the admissibility of scientific expert opinion testimony also applied to the opinions of non-scientific expert testimony. In response to Daubert and its progeny, Federal Rule of Evidence 702 governing the admissibility of expert testimony has been amended, effective December 1, 2000. Under Rule 702, a new standard is firmly in place by which the federal courts shall determine the admissibility of all, not only “novel,” evidence used by an expert in support of his opinions and conclusions. Essentially, the new standard establishes a two-pronged analysis for expert scientific or technical evidence: 1) is the reasoning and methodology underlying the expert’s theory or opinion reliable; and 2) is the proposed evidence relevant to the facts of the case? Accordingly, the attorney deposing an expert witness would be well served to ask the expert questions which could determine the admissibility of the expert’s testimony at trial.

In many instances, when an expert witness is disclosed, the opposing party’s attorney concedes that the testimony, if accepted, would assist the trier of fact to understand the evidence or to determine a fact in issue. You should not make this concession. The proliferation of “junk science” and “expert inflation” is well-documented. Too often, an attorney accepts the expert’s methods and techniques simply because he looks well-qualified on paper. This is true for defense experts as well as plaintiff’s experts. You will be well served to make a Daubert type inquiry of the opposing party’s expert.

Under Daubert, your outline for analyzing the expert’s methods and techniques should include the following areas of inquiry:

  • Have the expert’s methods or techniques ever been tested?

  • Have the methods or techniques used by the expert ever been the subject of a peer review process by colleagues in the same field?

  • Have the expert’s methods or technique been published in a peer reviewed journal or text?

  • Does the expert’s technique or method have a known or potential rate of error?

  • Do standards exist for the techniques or methods used?

  • Are the expert’s techniques or methods generally accepted in the field?

Your inquiry on the methods and techniques used by the expert should be flexible. The Daubert court made it clear that the factors identified above are not exhaustive. The advisory opinions to Federal Rule of Evidence 702 provide other excellent areas of inquiry which may be relevant to your deposition questions depending on the nature and type of expert evidence being offered.

If you have read and researched the opposing expert’s allegedly scientific methods and techniques, and perhaps consulted with your own expert regarding the acceptance of these methods and techniques in the field, then you may be successful in laying the foundation to later exclude the expert’s use of these methods and techniques at trial as the basis for his opinion and even exclude the entire opinion.

§637A Authoritative Treatises

You must be prepared to depose an opposing expert witness concerning whether any texts, literature or other scientific or technical writings in the field are authoritative. However, before you prepare to use an authoritative treatise at an expert’s deposition, you must understand how and when you can use them at trial. Federal Rule of Evidence 802(18) governs the use of authoritative texts and other material at trial. Under Rule 803(18), if an opposing expert witness testifies that a text or other document, which would be otherwise inadmissible hearsay, is a reliable authority, then statements contained in the text or document can be read into evidence before the jury. This is considered substantive evidence. Similarly, if your expert witness has testified or is prepared to testify that a text or other document is a reliable authority, then you may cross-examine the opposing expert with statements contained in the text or document in front of the jury. However, it is not considered substantive evidence; it is impeachment evidence. You should consult the evidentiary rules in your jurisdiction regarding use of authoritative texts as substantive evidence. Some state jurisdictions do not allow introduction of a text on direct examination as substantive evidence. See, e.g. Lawson v. G. D. Searle & Co., 64 Ill.2d 543 (Ill. Sup. Ct. 1976). On direct examination, the expert can testify that he is familiar with a text or study, that he has read it, and that he bases his opinion upon it; however, he is not permitted to read the content of the material to the jury. Schuchman v. W.R. Stackable, 555 N.E.2d 1012 (1990). However, on cross-examination of an expert, an attorney may read from a text before the jury to impeach the expert with a contrary statement. Darling v. Charleston Community Hospital, 33 Ill.2d 326 (Ill.Sup. Ct.1965). The jury hears the statement but it is not evidence.

Under Rule 803(18), the trial judge acts as the gatekeeper over use before the jury of any text or other document claimed to be authoritative. Schneider v. Revici, 817 F.2d 987, 991 (2nd Cir. 1987). The trial judge must determine that the treatise which is being offered is “trustworthy as viewed by professionals in the field.” Fed. R. Evid. 803(18), Advisory Committee Note. Authoritative treatises may take the form of textbooks, journal articles, or even videotapes published by a professional organization. Constantino v. Herzog, 203 F.3d 164 (2nd Cir. 2000) (American College of Obstetricians & Gynecologists teaching video on methods for delivering infant with dystocia admitted as authoritative text).

The party intending to use a text as an authority has the burden to lay a foundation that the text is authoritative. Schneider, supra.The foundation is typically established by an expert witness testifying that the treatise or author is a recognized authority on the subject at issue. Id.

Practice Tip: Authoritative Treatises

At the deposition of the opposing expert witness, you should ask the witness the preliminary question whether he considers any of the written materials that he has relied upon in support of his opinions to be authoritative on the subject matter to which he is testifying. Obviously, if he answers no, then he will not be reading any of the materials to the jury at the time of trial.

For the expert witness who does identify a text as authoritative, you must be prepared to question him regarding the basis for his opinion that the text is authoritative. Has he used the text as a reference in the past? Why is it recognized as authoritative? What makes a specific text authoritative when compared to other texts? You should also consider questioning the expert using a Daubert analysis. If the text is not accepted under the Daubert criteria, then a trial judge is not likely to accept the expert’s testimony that the text is authoritative.

Of course, opposing counsel will have disclosed the allegedly authoritative text to you in pre-deposition discovery. You should obtain each text, article or other document that the opposing party has identified before the deposition. The footnotes to the article can be invaluable. Often, the author of the article has cited to other journal articles by leading authors in the same field about the same inquiry. Undoubtedly, you will find dispute among authors about opinions which can be drawn about particular findings. For example, in the field of obstetrics, much has been written lately regarding nucleated red blood cell (“NRBC’s) counts in newborn infants and the ability to rely upon NRBC’s to calculate the timing of a brain damaging insult to the newborn during labor and delivery. A review of the published literature in the field quickly reveals the use of different total counts and ranges of times which are being used to assess when the damage occurred. If you confront the expert with differing studies and literature, then he may not be able to explain why the materials that he relies upon as authoritative are any more trustworthy or accepted than other materials.

You must also be prepared to ask the expert whether he acknowledges any of the texts or other documents that you intend to use in your case-in-chief as authoritative. If you represent the plaintiff, then you probably have disclosed through your expert authoritative texts, etc., that you intend to use. Presumably your expert has rendered the opinion at his deposition that the text is authoritative; otherwise, you will not be in a position to meet your foundational burden at trial with the text before use in front of the jury. Obviously, the opposing expert will have read the text or other document that you intend to offer. When the expert refuses to acknowledge a text as authoritative, you should be prepared to ask each reason for the refusal. Remember the deposition can give you advance warning of how the opposition intends to deal with your authoritative evidence. If you represent the plaintiff, then you may have also obtained time to declare rebuttal witnesses or opinions. If so, you may wish to confront the opposing expert with texts or other materials and declare them as authoritative rebuttal evidence. This type of preparation can be extremely disarming to the opposing expert. He will not have had an opportunity to ponder his response to your authoritative texts.

§638A Expert Opinions

The final area of your expert deposition outline should be designed to understand and explore the expert’s opinions. At this stage in the deposition your goal is to commit the witness to the subject matter upon which he will express opinions. Usually an expert witness will have a few discrete areas upon which he will testify. Make the witness identify what those areas are so that you have defined the scope of the expert’s opinions. Make sure you pin the witness down as being prepared to address only those subject areas. This will prevent the opposing party from inserting new subject matter areas of opinion by an expert on the eve of trial.

Using the report or interrogatory answer that you received which summarized the expert’s opinions prior to the deposition, you should mark the report or interrogatory as an exhibit to the deposition or read the material into the record. This should be the starting point for the part of your deposition dealing with the opinions. Ask the witness to make any clarifications or corrections.

Practice Tip: Expert Opinion

You may wish to limit the expert to the opinions set forth in the report or interrogatory answer. This can be done by simply not asking any more questions but rather stopping your interrogation. If the opposing counsel attempts to elicit new opinions not contained in the report or interrogatory, then you may be able to ask the court to bar the new opinion as untimely disclosed.

You may choose to interrogate the expert about each of the opinions previously disclosed. If you have followed a well-prepared outline for the deposition, then the validity of the opinions should be obvious to you. You will know whether the expert has built a credible foundation on which to support his opinions using his qualifications, the factual evidence, scientific methods and techniques and authoritative texts. If the foundation is incredible, the opinions will crumble. Having followed a well-prepared outline and strategy, you should complete the expert’s deposition and have understanding and control of his opinion testimony.

§638.1A    Support for Your Expert’s Opinions

You may also want to try to get the expert to buy into opinions offered by your expert that are not directly contradicted by your opponent’s expert’s opinions. Walk through your expert’s written report and find out what your opponent’s expert agrees with. Ask the expert to agree:

  • That your expert is qualified to offer the opinions he or she has offered, or that your expert is well respected in the field.

  • That certain treatises relied upon by your expert are authoritative.

  • That methodologies followed by your expert are valid.

  • In fact, you may want to walk through the Daubert factors with your opponent’s expert:

  • You would agree that the methodology [followed by my expert] has been tested.

  • You agree that that methodology has been peer reviewed.

  • You agree that that methodology has been published in a peer reviewed journal.

  • You agree that the rate of error in the methodology [followed by my expert] is within acceptable norms.

  • You agree that the methodology [followed by my expert] is generally accepted in the field.

Another thing to consider is whether your opponent has disclosed multiple experts each of whom has submitted an expert report. If so, you may want to attempt to get each expert to critique aspects of your opponent’s other expert reports.

§639A Scope of Examination of Expert Witness

Both the Rules and the discovery statutes of most states allow for a deposition of an expert witness who is expected to testify at trial. See §123. In deposing an expert, you have practically an unlimited scope of examination as long as the questions are relevant to the issues of the action, and to the expert’s opinion. But see David Tunick, Inc. v. Kornfeld, 151 F.R.D. 534 (S.D.N.Y. 1993) (although oral examination of an expert witness at a deposition is liberally permitted, the scope of examination is generally limited to information designed to facilitate cross-examination). The principal qualification on this statement is that normally an expert cannot be examined on matters unrelated to his offered testimony at trial. If the expert utilizes the attorney’s work product to form his own opinion to which he will testify at trial, the work product privilege may be deemed waived. Boring v. Keller, 97 F.R.D. 404, 407 (D. Colo. 1983). Cf., All West Pet Supply Co. v. Hill’s Pet Products Div., Colgate-Palmolive Co., 152 F.R.D. 634, 637-638 (D. Kan. 1993) (attorney’s work product does not lose protection under 26(b)(3) by reason of being sent to expert witness).

§639.1A    Examining a Party as an Expert Witness

Frequent disputes arise when one party seeks to depose the other party (or employee of the other party) as an expert witness or to discover his opinion when that party or expert will not be called to testify at trial as an expert. This raises the issue of whether a party or employee of a party may be compelled to involuntarily testify as an expert witness for the adverse party.

For example, in Movan v. Pittsburg Des Moines Steel Co., 6 F.R.D. 594 (D.C. Pa. 1947), the issue was whether defendants had negligently designed a steel gas tank. Plaintiff sought to question ­defendants’ chief engineer on his opinion of the safety and suitability of the grade and chemical constituency of the steel used in the gas tank. The court held the engineer did not have to give his opinions, noting that while a party may call an officer, director or employee of an adverse corporation, the scope of examination is limited to the facts he had observed, and not speculation and opinion to what might have been done to prevent injury. Movan at 596. See also, Imposition of Sanctions in Alt v. Cline, 589 N.W.2d 21, 27 (Wis. 1999) (Party seeking expert’s opinion can only compel expert to give existing opinions; an expert cannot be required to do additional preparation); Hickey v. U.S., 18 F.R.D. 88 (D. Pa. 1952); People ex. rel. Kraushaar Bros. & Co. v. Thorpe, 72 N.E.2d 165 (N.Y. 1947). However, there is also substantial authority allowing such examination. SeeAnnotation, Right to Elicit Expert Testimony from Adverse Party called as Witness, 88 A.L.R.2d 1186 (1963). See also Annotations, Pretrial Discovery of Facts Known and Opinions Held by Opponent’s Experts under Rule 26(b)(4) of Federal Rules of Civil Procedure, 33 A.L.R.Fed. 403 (1977); and, Pretrial Deposition B Discovery of Opinions of Opponent’s Expert Witness, 86 A.L.R.2d 138 (1962). See also Dallas v. Marion Power Shovel Co., 126 F.R.D. 539 (S.D. Ill. 1989).

§639.2A    Scope of Expert Witness and Consultant’s Privileged Knowledge

In retaining and preparing an expert witness for deposition, the safe course of action is to assume that nothing you say to or give to the expert and nothing the expert writes or mentally prepares is privileged or otherwise excluded from your adversary’s examination. In other words, review the rules applicable to nonexpert, nonparty witnesses and the privileges applicable thereto.

Often a party designates as an expert witness or a consultant its own employee—who indeed fully qualifies as an expert in the relevant area—but who also was a participant in the events at issue in the lawsuit. Absent exceptional circumstances, a consulting expert’s knowledge of facts and opinions held is privileged under Rule 26(b)(4)(B) only to the extent they were obtained or formed after ­being retained or specially employed by a party in anticipation of litigation or preparation for trial. As to events prior to that time, the person who may subsequently have been hired as a consultant, is an ordinary fact witness. Similarly, if the events involved in the litigation continue, and the expert is an actor, knowledge concerning these acts cannot be hidden behind the consultant privilege. Designating a fact witness as a consultant does not clothe him with privilege he would otherwise be without. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 554 (Tex. 1990).

Similarly, an expert witness which you retain may have some privilege as to your communications with him. See §763.

§639.3A    Putting it All Together Into a Deposition Outline

So by the time you actually sit down and start writing your expert deposition examination outline, you will have already read the expert’s written opinion carefully, transcripts of the expert’s prior testimony, articles written by the expert, and any other bases on which the expert has identified his or her opinion.

Expert deposition outlines tend to take on typical formats, so you may want to consider varying the order if you fear that using a familiar examination order will make a well prepared or a much experienced expert too comfortable.

  • The Expert’s Retention: Examine the scope of the expert’s assignment.

  • The Expert’s Qualifications: Examine the nexus between the qualifications and questions posed to the expert.

  • The Expert’s Biases: Examine grounds that may undermine the weight the trier of fact would give to the expert’s opinions.

  • The Expert’s Process: Examine to what extent the expert’s opinion was freely and independently derived.

  • The Expert’s Understanding of the Facts: Examine the facts upon which the expert relies, the source of those facts, and any facts to which the expert has not been made privy.

  • The Expert’s Methodology: Examine how the expert applied the facts the expert identified as material to a set of rules in order to derive the proffered opinions, and then probe whether the methodology was reliable.

  • The Expert’s Agreement with Your Expert: Examine facts, methodologies and opinions of your expert with which the expert you are deposing agrees.

  • Disagreements with Other Opposing Expert Reports: If your opponent has disclosed multiple experts, each of whom has done an expert report, try to get each expert to critique the others.

  • The Expert’s Opinions: Lock the expert in, then follow the opinion from questions presented, through facts and their application to a particular methodology, and then test with common sense.

And of course do not forget to include in your outline a list of your deposition goals.

Daniel P. Dain is a founder and the Managing Partner of Brennan, Dain, Le Ray, Wiest, Torpy & Garner in Boston,Massachusetts. Mr. Dain is a trial lawyer focusing his practice on representing real estate developers and property owners in litigation and administrative matters. He also maintains a commercial litigation practice and has represented clients in insurance coverage disputes. Mr. Dain was formerly Senior Counsel for Real Estate and Land Use Litigation at Goodwin Procter, LLP. Mr. Dain is also a former Special Assistant District Attorney in Middlesex County, Massachusetts. He is the author of How to Prepare for, Take and Use a Deposition, from which this article is excerpted.