Oopsy Dixit: Expert Witness Challenges

By Maggie Tamburro
We make it our business to expound on all things expert, with the goal of keeping you abreast of the most current expert information you need to prevail in your cases. With that in mind, we’d like to introduce to you Oopsy Dixit: Expert Witness Challenges.

In this BullsEye feature, we’ll share with you short, timely appellate rulings involving expert witnesses and challenges, and glean information about current rulings, together with the case citations, in case you’d like to access the full opinion.

First Circuit – Expert’s “Bald Assertions” Don’t Cut It

An opinion that caught our eye was a First Circuit appeal out of the U.S. District Court for the District of Massachusetts, decided on February 1 of this year. As if on cue for tax season, the case involved a suit brought by a Massachusetts corporation against its accountant and his firm, alleging that the accountant gave faulty tax advice.

We can’t help sharing the first judicial nugget in the case, (although admittedly somewhat unrelated to the expert witness issue), an artfully crafted reminder about a law school 101 topic that still hounds even the most seasoned attorney:
These appeals call to mind that the law normally ministers to the vigilant, not to those who sleep upon perceptible rights.”

Now for the case. A Massachusetts corporation involved in developing heating and ice-dissolving systems designed for mass transportation and rail industries originally brought the action, claiming its former accountant gave negligent tax advice in advising the corporation to file amended tax returns. Plaintiff corporation asserted that the faulty tax advice resulted in increasing liability of the principals, resulted in lost corporate profits, and undermined the financial stability of the company.

The lower court granted summary judgment in favor of the defendant accountant, and the plaintiff brought this appeal. In its appeal, plaintiff asserted that because one of plaintiff’s experts concluded that “alternatives to [defendant’s] approach would have resulted in lower tax liability,” the expert’s conclusion created an issue of fact, and therefore the grant of summary judgment in favor of defendant was made in error.

The First Circuit disagreed with the plaintiff and rejected its appeal, stating, “This suggestion comprises more cry than wool. In the absence of tax returns to support the expert’s conclusion – and the record contains none – the district court did not err in declining to credit the expert’s view.”

Quoting a First Circuit decision from 1993, the First Circuit explained,
'[E]xpert testimony may be more inferential than that of fact witnesses,’ but ‘an expert opinion must be more than a conclusory assertion about ultimate legal issues’ in order to thwart a motion for summary judgment. (Citations omitted.) It is possible that [plaintiff’s expert’s] approach might result in a lighter overall tax burden – but in the absence of an overall set of tax calculations, factually supported, that possibility is entirely conjectural. To forestall the entry of summary judgment, the law requires more than arguments woven from the gossamer strands of speculation and surmise.”

The First Circuit also noted that, with respect to certain claimed damages, the plaintiff’s expert report hinged solely on conclusory, “but for” statements - which the court termed “bald assertions” - properly rejected by the lower court. "[S]ummary judgment cannot be defeated by an expert's conclusory assertion about ultimate legal issues" continued the court.

Moral of this story – make sure you have the bite to back up your bark when it comes to an expert’s conclusory statements. Be sure your expert has done his or her homework - in the form of evidence that is comprised of both a sound reliable and methodological basis to support any ultimate conclusion specific to the industry and case at hand. What is required in each industry is case and circumstance specific, but this ruling makes clear that merely relying on an ipse dixit approach comprised of “bald assertions” won’t cut it – under any set of circumstances.

The citation to the 1st Circuit’s decision is RTR Technologies, Inc. v. Helming, (First Circuit, Feb. 1, 2013).

Tenth Circuit Upholds Refusal to "Connect the Proverbial Dots"

This appeal came to fruition when petitioner appealed a lower court’s dismissal of a Title VII lawsuit concerning sex discrimination and retaliation claims against her employer, the U.S Forest Service. Petitioner claimed that the defendant had improperly filled an employment position with a male employee rather than petitioner, a female.

The appeal concerned the district court’s exclusion of the testimony of petitioner’s two experts - one of which was retained for purposes of testifying on sex stereotyping - and granted summary judgment in favor of the U.S. Forest Service.

The petitioner’s sex stereotyping expert seemingly looked great on paper. She held a Ph.D. in business, and had over twenty-five years of experience working in the areas of human-resource management and organizational behavior. In addition, she had prior testimony experience in areas that were perhaps at first glance relevant to this case – age discrimination, sexual harassment, and wrongful termination. However, the district court found her unqualified and excluded her testimony, a decision which the appellate court upheld.

So what went wrong? The district court concluded that petitioner’s expert would be testifying specifically as to “sex stereotyping in the workplace,” and that she lacked specialization in this particular area. Despite a plethora of what looked to be related expert experience, plaintiff’s expert had never conducted research, opined on, or written about sex stereotyping, and only became familiar with the subject after being retained for petitioner’s case.

Therefore, the court refused to allow the testimony, finding that the petitioner had not been able to demonstrate that sex stereotyping was “within the reasonable confines” of the expert’s expertise and petitioner had failed to carry her burden of showing that the expert was qualified to opine on the particular field of sex stereotyping.

In short, although the expert had what perhaps initially looked to be on target credentials, the district court required more in the way of expert specialization on the topic that was the subject of her testimony. Failing that, the court simply refused to fill in the blanks.

In a footnote, the 10th Circuit seemed to give some critical advice, as is usually the case with legal footnotes, which (word to the wise) are almost always worth reading. The U.S. Forest Service pointed out the expert’s claimed shortfalls at the lower court level. However, since they were not contested or rebutted by the petitioner, they were essentially conceded – and proved fatal to the qualification of her expert. Moral of this part of the story – it is incumbent upon a party to rebut asserted deficiencies as to an expert’s qualifications – and not leave that task to the imagination of the court.

At the end of the day, the court flatly refused to “connect the proverbial dots” for the petitioner – wanting something more as to the expert’s qualifications which demonstrated that petitioner’s expert had specialized expertise in sex stereotyping.

The citation to the 10th Circuit’s decision is Conroy v. Thomas Vilsack, Sec’y of Agric., U.S .Dept. of Agric. (Tenth Circuit, Feb. 11,. 2013).

No matter what side of the “v.” you find yourself, or your client, we hope you find Oopsy Dixit: Expert Witness Challenges useful (and sometimes even entertaining).

If you would like to submit recent, noteworthy expert rulings, please forward your suggestions and tips to the editor at editor@ims-expertservices.com.

Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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