Lawyers are always on the lookout for grounds to challenge their opponents’ expert witnesses. Imagine if those very experts would help you find their Achilles’ heels, sending up red flags that alerted you to their vulnerabilities. Well, maybe they already do. All you need is to know what to look for.
If you need any help in identifying those red flags, the 6th U.S. Circuit Court of Appeals recently provided some useful direction. In an April 3, 2012, decision involving the allegedly defective design of a forklift, Newell Rubbermaid, Inc. v. The Raymond Corporation, the court described what it called the “red flags” that should alert a trial judge to exercise caution in certifying an expert witness.
The underlying lawsuit was brought by Newell Rubbermaid to recoup benefits it paid to an employee who was injured in a forklift accident. Newell sued The Raymond Corporation, the company that designed and manufactured the forklift, alleging that a design defect – the lack of a rear guard door – was the cause of the employee’s injury.
In the lower court, Raymond countered by filing motions to exclude the testimony of Newell’s expert witness and for summary judgment. The trial judge, finding that the methods used by the expert were not sufficiently reliable to support the opinions he would put forth, granted the motion to exclude. Because that ruling left Newell with no expert testimony to support its case, the judge also granted Raymond’s request for summary judgment.
‘Red Flags’ of Caution
In its review of the case on appeal, the 6th Circuit noted that the Supreme Court’s decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), requires the trial judge to evaluate “whether the reasoning or methodology underlying the testimony is scientifically valid.” Although there is no definitive checklist or test for meeting this standard, Daubert provided various factors a court should consider.
These include whether the theory or technique in question can be tested, whether it has been subjected to peer review and publication, whether it has a known or potential rate of error, and whether the theory or technique enjoys general acceptance in the scientific community, the 6th Circuit explained.
By the same token, courts should also be on the lookout for red flags that signal potential weaknesses in an expert’s reasoning, the 6th Circuit said. “Red flags that caution against certifying an expert include reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity. … In addition, if a purported expert’s opinion was prepared solely for litigation, that may also be considered as a basis for exclusion.”
In looking for those red flags in the case at hand, the 6th Circuit quoted from the trial judge’s findings:
[The expert’s] methods are clearly not scientifically sound. He merely counts accidents from accident reports relating to non-Raymond forklifts. Without questioning or verifying the data and without conducting any tests of his own …, he reaches conclusions about the forklift involved in this case. Furthermore, although … he opines that a latching or spring-loaded rear door is necessary to make this forklift safe and that such a modification would be technically and economically feasible, he never actually tested either of these alternative designs.”
Within the trial judge’s findings, the 6th Circuit found red flags aplenty: “In this short paragraph, the district court identified at least four red flags in [the expert’s] methodology: anecdotal evidence, improper extrapolation, failure to consider other possible causes, and, significantly, a lack of testing.”
The 6th Circuit said that it had found similar red flags to be sufficient to warrant an expert’s exclusion in prior cases and that it saw no reason to ignore the signals here. The trial judge’s “extensive discussion” of the expert’s weaknesses was well supported and Newell’s appeal failed to show any reason to reverse the ruling.
One Flag Left Fluttering
Even as it affirmed the expert’s exclusion, the 6th Circuit left one red flag dangling uncertainly at half-mast. Recall from above the court’s suggestion that a red flag should be raised “if a purported expert’s opinion was prepared solely for litigation.” Well, in this case it was – and the court seemed uncertain of what color flag to fly over that fact.
The expert in this case was employed full time as a forensic engineer. The very nature of his employment meant that his opinion was, without doubt, prepared for litigation. Raymond raised this point as a reason to exclude the expert as per se unqualified, but the court seemed reluctant to embrace it.
“We question whether employment alone should bar [the expert] from testifying as an expert witness, since forensic scientists – professionals in a field similar to [this expert’s] – are frequently considered qualified to testify at trial,” the 6th Circuit said.
As courts sometimes do with difficult issues, it sidestepped this one. “We need not decide this issue,” it concluded, because even if the witness was qualified to serve as an expert, “the district court did not abuse its discretion when it determined that his methodology was not sufficiently reliable to allow his testimony.”
Smarter lawyers than I can debate whether this was a banner opinion for expert testimony. One takeaway, however, is clear: Next time you depose an expert, be on the lookout for warning signs that point to flaws in the reliability of an expert’s methodology. You just may see red flags flying overhead – which could lead to exclusion of the expert’s testimony and early resolution of your case
What do you consider a red flag in determining reliability of an expert’s methodology?
Have you ever had expert testimony challenged on the basis of the expert’s employment? Or was this merely a smoke signal from the lower court that won’t pass muster as a basis for exclusion?
Robert Ambrogi, Contributing Author
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One Response to “Court Spells Out ‘Red Flags’ to Watch for in Experts”
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If the expert’s opinion should be excluded because it was specifically prepared for trial, then every expert opinion relative to any specific issue of a particular case must require exclusion of the expert opinion. The client asks his attorney: “Did Aunt Suzie write the holographic will leaving all her estate to our nasty cousin Blister?” The attorney passes the question on to his favorite handwriting expert along with letters Aunt Suzie handwrote within days of dying. The expert works up a fine report with a satisfactory opinion, so the attorney calls the expert to testify. The other side, the attorney for proponent of the will, demands an in limine hearing to see whether the opinion was developed exclusively for litigation. But the attorney for the contestant ends his questioning of the expert with a query that defeats the challenge: “Did you prepare your report and opinion solely, or even initially, for litigation?”
Answer that wins the day: “Not at all. When I read the obituary in the paper, I looked into the matter and formed an expert opinion that Aunt Suzie did not write the will in question. Then, in teaching a class to trainees, I developed all my exhibits that I have brought to court so that the students could study the fine points of my unimpeachable opinion. Several other such events occurred. Finally, when you called me to look into the case, I was completely dumbfounded at the coincidence. As in all my cases, it is always an overwhelming surprise to be called to testify about some obscure handwriting issue that I just happened to have looked into previously, sometimes just the day before.”
Sure, we all know that is exactly how the realities of litigation and expert opinions develop.
But if sarcasm is of no help in exposing the misapplication of an otherwise sound legal rule, maybe a sober question will help: Can anyone, even the challenger to the expert’s opinion, say that the development of any testifying expert’s opinion about a fact at issue in the instant case came about by serendipitous findings in an entirely unrelated investigation?