EXPERT TESTIMONY: SEPARATING THE JUNK FROM THE JEWELS UNDER FEDERAL RULE OF EVIDENCE 702
by Jessica Phillips
Partner, Swift Currie
Frequently, adjusters and attorneys require input and opinions from professionals with particular expertise and training in a specific field or industry. These professionals may provide opinions regarding causation, remediation, repair, damage, and other similar issues which present themselves during the course of a claim. Though different states have different rules of evidence governing testimony from these professionals, most generally follow the principals set forth in the Federal Rule of Evidence 702, which permits “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education” to provide opinion testimony when “the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. R. 702[1]. However, under the federal rules, in order for the professional’s testimony to be admissible, he or she must qualify as an “exert” and their opinion must be (1) based on sufficient facts or data; (2) the product of reliable principles and methods; and (3) the expert must have reliably applied the principles and methods to the facts of the case. Fed. R. Evid. R. 702. A court acts as a gatekeeper to scrutinize proffered expert testimony to ensure only reliable and relevant evidence is presented to a court. In so doing, a court will scrutinize proffered testimony to ensure it is scientific “meaning grounded in the methods and procedures of science” and constitutes knowledge, “meaning something more than subjective belief or unsupported assumptions.” McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004). The burden is on the proponent of the expert to establish the admissibility of the testimony by a preponderance of the evidence. Daubert, 509 U.S. at 592 n. 10. For the federal jurisdiction and a majority of states, the principles set forth in Daubert v. Merrell-Down Pharmaceutical, Inc. provide guidelines for these courts to conduct this analysis. 509 U.S. 579 (1993).
First, an expert must be “qualified” through knowledge, skill, experience, training or education. Importantly, education is not the sole requirement to qualify as an expert witness. Qualification as an expert through Daubert does not require a doctorate degree, or even a college education. Rather, courts will consider all information regarding the proffered expert’s background, including 1) the education and training of the expert, (for example, any degrees, certifications, and/or licenses held by the expert; 2) the experience of the expert (for example similar cases previously handled by the expert and/or research conducted by the expert); 3) and the expert’s past history of providing expert testimony. Webster v. Desai, 305 Ga. App. 234 (2010). The Court will consider the expert’s past experience, education, and training in comparison to the specific area of proffered testimony. For example, structural engineers are often considered qualified to serve as expert witnesses. However, mold remediation technicians, water extraction technicians, general contractors, and other certified or licensed professionals may similarly qualify in appropriate circumstances. Often, it is difficult for an adjuster or claims professional to fully evaluate a potential experts qualifications. Therefore, utilization of some practical guidelines may assist the adjuster or other claims professional in selecting an appropriate expert for a particular case. These guidelines include: 1) requesting the curriculum vitae or resume of the potential expert; 2) questioning the potential expert regarding his or her certifications, licenses, and work experience to ensure that this experience is relevant to the particular issue presented in the claim; 3) researching the potential expert to ascertain whether the expert has relevant certifications and/or licensures; and 4) determining whether the potential expert has provided testimony as an expert in prior occasions, and, if so, whether the experts qualifications were successfully challenged and/or the testimony excluded.
However, even the most educated and knowledgeable individual may not be permitted to offer expert opinions in a given case. Indeed, qualifications are not the sole test of whether proffered testimony will satisfy the requirements of Fed. R. Evid. 702 as even a “supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based on some recognized scientific method.” McDowell, 392 F.3d at 1298 (quoting Clark v. Takata Corp., 192 F.3d 750, 759, n. 5 (7th Cir. 1999)). The Federal Rule of Evidence Advisory Committee and the Eleventh Circuit have enumerated additional factors for evaluating whether an expert’s testimony meets Daubert’s reliability requirements. Fed R. Evid. 702; U.S. v. Frazier, 387 F.3d 1244, 1297 (11th Cir. 2004). These include whether: (1) the testimony “grow[s] naturally and directly out of research [experts] have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying”; (2) “the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion”; and (3) “the expert has adequately accounted for obvious alternative explanations.” Frazier, 387 F.3d at 1297. Accepted methodology must involve “some inquiry into industry standards, practices, or publications” so that it results in “conclusions based upon concrete data, testing, measurements, or calculations.” Id. (quoting McGee v. Evenflo Co., 2003 U.S. Dist. LEXIS 25039, at *13 (M.D. Ga. Dec. 11, 2003)). Simply put, “the courtroom is not the place for scientific guesswork, even of the inspired sort.” Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir. 1996). Through its analysis of proffered expert witness testimony, the court seeks to exclude “expertise that is fausse and science that is junky.” Khumo Tire Co. v. Carmichael, 526 U.S. 137, 159 (1999)(Scalia, J., concurrence).
Evaluating whether a potential expert has used accepted methodologies can present even more of a challenge to claims professionals than determining whether an expert has appropriate education or training to qualify as an expert. The claims professional should be familiar with prevailing theories surrounding the issue to be evaluated and review with a critical eye whether the expert has complied with those theories.
Often, an entire coverage defense rests on the findings and opinions of the expert witness. Therefore, exclusion of the expert’s testimony could have catastrophic consequences for the carrier’s defenses and conclusions with respect to a claim. However, in my experience, I have observed some “red flags” which can assist a claims professional in evaluating the credibility of an expert witness opinions and/or testimony. For example, does the expert always or never reach an opposite result (i.e. does the expert always find hail damage to a roof system or never find hail damage)? If so, this could suggest that the expert has a pre-conceived objective to reach a particular conclusion and is utilizing a methodology or theory that will satisfy that conclusion. Additionally, is the expert’s opinion in conflict with basic and fundamental scientific principles (i.e. did the expert conclude that more than 100% of a particular structure is damaged)? If so, this suggests that the expert is not relying on scientific principles to reach his conclusion. Furthermore, a claims adjuster should consider whether the expert compensated on a contingency fee. If so, this could create a motive for the expert to reach a conclusion sought by a particular party instead of providing an unbiased opinion regarding the issue to be determined. Finally, does the expert assume significant pieces of information or data upon which his calculations or conclusions are based? If so, there is a significant likelihood that his conclusions are essentially conjecture or speculation.
Expert witnesses provide a valuable function to claims professionals. Experts assist claims professionals in evaluating important issues presented in a claim including causation, repair, prevention, and restoration. Given the importance of expert opinions, it is critical that claims professionals review these opinions with a critical eye to ensure the proper decision with respect the claim is reached and that these opinions will be admissible at any future trial or litigation related to the claim.
Should you have any questions about this article, would like more information about this topic, or have would like to discuss another coverage matter, please contact Ms. Jessica Phillips e-mail jphillips@swiftcurrie.com or telephone 404.888.6148.
[1] Importantly, each state has developed its own standards and thresholds to evaluate the admissibility of expert witness testimony. However, many states have expressly adopted the standards set forth in Daubert v. Merrell-Dow Pharmaceutical, Inc. For example, Georgia has expressly adopted the standards set forth in Daubert v. Merrell-Dow Pharmaceutical, Inc. However, Florida state courts analyze the admissibility of expert witness testimony under the standards set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). However, for the purposes of this article, the standards set forth in Daubert will govern the discussion of the admissibility of expert witness testimony.