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How To Effectively Attack & Defend Expert Testimony: The Expert’s Perspective Under Florida’s Daubert Standard – Blog 7 Of 9

How to Effectively Attack & Defend Expert Testimony: The Expert’s Perspective under Florida’s Daubert Standard – Blog 7 of 9

Post Series: How to Effectively Attack & Defend Expert Testimony
Until relatively recently, many experts maintained the following perspective: I may not thoroughly understand this issue and may not have a lot of experience with it, but I have the expertise and knowledge to research the information and then speak authoritatively on it. Daubert places a greater burden on the expert to follow recognized methodologies and reliably apply the facts and data to those methodologies. Therefore, lack of experience with a certain issue can be problematic. Under the Daubert version of Florida Statute §90.702, experts are still recognized as witnesses who may assist the trier of fact because of their knowledge, skill, experience, training, or education (what I refer to as Frye’s “the five nouns”). Experts’ opinions traditionally evolve from composite sources, some from the case specific, which, of course, is all new information to the expert, and some from what they already know, defined by the five nouns. Experts should not be expected to know everything about a case. But, experts need to be able to understand all facets of an issue and should be allowed to tune-up or refine their respective opinions with sound research, which may result in new knowledge to the expert. Where’s the line drawn to limit the amount of new, supplemental knowledge (to the expert) that can be introduced or relied upon by the expert under the Daubert Standard? In some instances, it is easy to recognize the problem presented by the expert’s lack of experience in a certain area. Consider a complex construction claim comprising several trade disciplines, where one of those disciplines involves technical aspects of pipe driven piles. While the expert may be or once was an experienced contractor with broad experience in managing projects and supervising many disciplines, perhaps even self-performing some of those disciplines, he or she may have limited experience in pipe driven piles. The question is: Is it reasonable for the expert to educate himself in pipe driven piles and then testify as an expert witness, or does the attorney need to retain a pipe pile driving expert? In this instance, because piling is a relatively complex specialty, and not as common as, for example, most aspects of painting, just merely supplementing the expert’s knowledge would not be sufficient, and a separate specialty expert would be appropriate. Under Florida’s new Daubert standard, because pure opinion testimony is not allowed, an expert is not qualified merely by demonstrating that he can assist the trier of fact by satisfying the so-called “five nouns” test. Florida Statute §90.702 now expressly requires that (1) the testimony be based on sufficient facts or data; (2) the testimony must be the product of reliable principals and methods; and (3) the witness must apply the principles and methods reliably to the facts of the case. The difference may often be the baseline from which the expert starts. If an expert is able to bring to the table, for the purpose of our discussion, expert credentials as defined by the requisite five nouns to reach an opinion, but only has 80% of the actual experience in employing recognized methodologies to research the issues, to what extent should the court provide that expert the latitude to supplement his or her experience? So long as the expert can sufficiently learn and apply recognized methodologies, it should be allowed. Keep in mind, however, an expert otherwise competent to research and learn information about an issue cannot merely be a conduit to convey information not previously familiar to that expert. As discussed above, even under the flexibility provided to technical experts, as opposed to scientific experts, who may establish reliability because they normally use such an analysis in the normal practice of their professions, the Daubert bar is especially high for experts who perform an analysis involving a particular subject with which the expert does not already have significant experience. The Supreme Court’s guidelines in assessing the reliability of expert testimony are not as much help with common field practices or standards or with what is normal and customary in the construction industry in Florida. So, have we moved our discussion forward? The point is that an expert may have some latitude to “bone up” on relevant topics when faced with a specific set of facts in a case that does not fit precisely within the expert’s instant command. A heightened focus on the objectively verifiable data to support the opinion and confirming that such data does comply with recognized standards such as ASTM protocols becomes more significant. During the last generation of the Frye era in Florida, greater scrutiny was limited only to more scientific, highly complex knowledge, similar to the original Frye decision. Outside of complex scientific areas of inquiry, courts seemed more tolerant of experts taking modest liberties to expand their areas of expertise. Perhaps motivated by concerns of being overturned for excluding evidence, courts were more inclined to allow admission of challenged testimony, frequently stipulating it should be given the weight deemed appropriate during deliberation. This provided the courts some cover; it avoided memorializing a decision barring testimony, which would have been low-hanging fruit for an appeal. It seems that is no longer the case. Adoption of the Daubert standard has encouraged attorneys to consider a Daubert challenge in many cases, although due to strategic decisions, the challenge remains unpursued. Now, when a Daubert challenge is raised, the courts, as gatekeepers, are expected to exclude unreliable testimony under stricter standards. Ultimately, experts need to be conscientious with respect to whether they can provide testimony that will withstand a Daubert attack from the start. The expert, assumed to be the professional retained to render his or her opinion, and being relied upon as an independent elevator for the client, is expected to carefully evaluate each engagement presented to determine whether he or she is sufficiently equipped with the intrinsic tools to perform the necessary analysis to reach a competent, well-reasoned conclusion and opinion that will withstand a Daubert challenge. The expert must be able to recognize the complexity of the issues and know whether there are readily available and accepted investigation and testing protocols. This is not always as easy as it appears at first blush. For instance, when experts are retained to represent general contractors in connection with many Florida §558 matters, there might not yet be a formal investigation to analyze and respond to at the point of initial engagement. Often, no document production has transpired, and inevitably, subcontractors will be brought into the fray. Before formal litigation, and even early in the case, it is difficult to anticipate the potential facts, issues or novel defenses that will arise at the case progresses. Notwithstanding, there are frequently ‘tells’, and the expert must accept the responsibility to evaluate the proposed engagement and advise the attorney, before accepting the case, if there are questions or concerns prompted by the information that is available. If potential issues could give rise to a need for additional experts, the issues should be flagged and discussed early in the engagement. Too often, experts are motivated to accept potential engagements by (1) the need for work at that point in time; (2) an interesting and challenging engagement; (3) the expert’s fear of losing an established relationship because of the expert’s inability to perform the requested assignment; (4) a concern that saying ‘no’ sends a signal to the attorney that the expert is not interested in the attorney’s work; or (5) the expert’s ego unwilling to consider the possibility that he or she is not qualified for the particular engagement. Regardless of the motivation, the expert owes it to the client to make a reasonably thorough evaluation before accepting the engagement. Needless to say, the decision to say no is normally difficult and attorneys should be keenly aware of the expert’s understandable reluctance to turn away a valuable opportunity. Once engaged, the expert needs to continue to stay mindful of potential Daubert challenges. If an aspect of the case arises that suggests to the expert that he or she may not have sufficient credentials, or issues with which the expert is just uncomfortable, the expert needs to discuss the concern with the attorney. This decision is more difficult than the decision whether to accept the engagement. By this point, the case has moved along well into the document production stage, with depositions likely being taken. The last thing the attorney wants to hear is that his expert is getting cold feet. However, what the attorney wants even less to hear is this same concern voiced just before trial or arbitration. Therefore, the expert, if he or she is doing their job responsibly, and adding the expected value to the prosecution or defense of the case, needs to be candid and open with the attorney, even when it strains the relationship or necessitates revamping case strategy. It risks damaging the attorney/expert relationship long-term, but the first duty of the expert is to the client in the case at hand. Is the implementation of the Daubert Standard in Florida good or bad? It is likely both. Does it cost more in consulting fees? Most likely, yes—and probably more in attorneys’ fees as well. A lot more? That depends upon how the case and the experts are managed. Does Daubert improve the justice system? Probably, although the answer to that question is difficult to measure in the short term. There is no question, the introduction of the Daubert standard into Florida has changed the legal landscape for construction. Attorneys now have another arrow in their quiver; experts are challenged to tighten up the selection of engagements they accept, to remain vigilant for areas where they may not have sufficient direct experience, and to be proactive in addressing the need for additional expert support.

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