Shooting from the Hip with a 'Hired-Gun' Expert Witness

By Maggie Tamburro
Think you have that winning expert witness in your back pocket?  Think again.  The 6th Circuit has recently released an opinion that reminds experts and attorneys to use extreme caution:  That ace-in-the-hole, hired-gun expert witness might just backfire if you’re not careful.

You likely won’t find this case reported on by Reuters or The Wall Street Journal (at least as of this writing).  However, it certainly didn’t escape our attention as a must-read U.S. Circuit Court opinion addressing the niche and nuance filled world of experts, reliability, and admissibility.  The opinion also serves up equally important ammunition for attorneys defending corporations, providing ample fodder for those seeking to challenge hired-gun expert testimony in certain disciplines.

When the Ordinary Becomes Extraordinary

The case facts were somewhat ordinary, but sometimes, (as spoken by a famous American football coach from Texas), the difference between the ordinary and the extraordinary is "that little extra.”

The case concerned allegations of defective design involving a leading global manufacturer of industrial equipment as a defendant.  While under the employ of Lowe’s (also named as a defendant earlier in the action), the plaintiff unwittingly suffered a crushed foot while operating a piece of heavy equipment.

As is generally the case in proving such cases, plaintiff required an expert witness.  Plaintiff hired what at first blush seemed like a winning choice – a mechanical engineer with extensive prior litigation experience in both consulting and testing involving equipment similar to that in this case. With the help of her expert witness, plaintiff came out of the gate with guns drawn, suing for compensatory and punitive damages.

The defendant, however, returned fire, attacking the reliability and admissibility of the expert’s testimony with a motion in limine (and a motion for summary judgment).

Dubbing him a “quintessential expert for hire,” the district court concluded that nearly all of the expert’s knowledge and experience had resulted from his work as a legal consultant in other cases.  Moreover, the court concluded that the expert’s testing failed to address alternative design issues specific to the product and manufacturer at issue in the present case.

Excluding the expert’s testimony as unreliable, the district court granted defendant’s motion for summary judgment, and the case landed on appeal in the 6th Circuit, offering up some important take-aways for experts and attorneys alike.

What Didn’t Get Plaintiff Out of the ‘Starting Gate’

In its appellate opinion, the 6th Circuit reiterated three valuable lessons, all of which are critical for attorneys defending corporations in such actions to know.
  • Don’t assume a “quintessential expert for hire” is bullet proof.

  • If an expert is a “quintessential expert for hire,” (meaning he or she has performed very little non-litigation-related research), the  6th Circuit upheld the notion that a trial court has discretion to apply the Daubert factors more rigorously, requiring the expert to show some kind of objective proof of reliability.

    Moral of story:  A district court can (and those in the 6th and 9th Circuits will) analyze more rigorously the admissibility of certain expert testimony that is prepared solely for litigation.

    Some circuits have layered the “prepared-solely-for-litigation” test over the factors enumerated in Daubert.  However, the 6th Circuit’s decision serves as a current reminder that this “prepared-soley-for litigation” test remains alive and well.

  • An expert’s opinion is not considered prepared solely for litigation when the matters involving the expert’s testimony grow naturally out of research conducted independently of the litigation.

  • Here the district court found no evidence the expert’s opinion had grown naturally out of independent research.  Instead, the expert’s knowledge and experience regarding the case at issue was nearly all the result of consulting work in other cases.

    In fact, when he formed the opinion proffered in the present case, the expert was working for an engineering firm that was performing consulting work on earlier litigation, and his testimony showed that he had conducted very little non-litigation-related research.  Because the district court concluded that the expert’s opinion was actually the result of work on other cases, it scrutinized that opinion more closely.

  • Adherence to generally accepted methodology won’t “save” from challenge an expert’s opinion that is not generally accepted in the relevant scientific community.

  • The plaintiff argued that the lower court should have focused on the expert’s methodology, not the conclusions generated.   Plaintiff argued that methodology utilized by the expert was generally accepted, which therefore should have justified the expert’s conclusions, but the court rejected that argument.  Although it is conceded conclusions and methodology are not separate issues, the circuit court here sided with defendant, sending the message that the means can’t be used to justify the end.

    The moral of that story:  Adherence to use of generally accepted methodology doesn’t act to bolster or otherwise justify expert theories or conclusions that are otherwise largely rejected by the relevant scientific community.

    An Expert Backfire

    What looked like the perfect expert backfired.  Why?

    Determinations of reliability are multifactorial, often case specific and can be highly discipline dependent.   Adding another layer to an already messy equation, district courts are granted wide latitude in determining which reliability factors should be used in a particular case, as well as how to apply and analyze those factors.  Many variables come into play, including the nature of the case, the particular facts and circumstances, and the type and discipline of expertise involved.   Knowing what is required in the evidentiary and procedural rules, the substantive area of the law, the case precedent in your jurisdiction, and the relevant field of expertise at issue is critical.  Finally, understand how those requirements are uniquely affected by the specific circumstances of your case.

    For example, in a design defect case, an engineering expert almost always must test a proposed hypothesis, often one including an alternative design - which the court found lacking here.  However, as noted in the 6th Circuit’s opinion, the alternative design testing here should have addressed both product-specific and manufacturer-specific issues, as well as the design’s comparative risks and benefits.

    The Takeaway for All Cases Requiring Experts

    The expert witness world is multi-layered and fraught with variables.  When seeking an expert, understand the nuances of what is required, as factors can vary depending on the area of law and discipline of expertise involved.  Use caution in hiring a ready-made, hired-gun expert, and know that doing so may well raise the level of scrutiny the lower court will apply to that expert’s testimony.    In every case, be sure your expert has adhered to applicable standards and intellectual rigor, and has applied them to the particular case in a way that is properly grounded in both knowledge and experience.

    Do you agree with the 6th Circuit?  Under what circumstances do you think a “quintessential expert for hire” should (or shouldn't)  be subject to higher scrutiny?

    Note:  The 6th Circuit case discussed here is Lawrence v. Raymond Corp. (6th Circuit, October 5, 2012) citing Johnson v. Manitowoc Boom Trucks, Inc. 484 F.3d 426 (6th Cir. 2007) (collecting 6th Circuit cases and citing the 9th Circuit’s revisit on remand from the Supreme Court known as Daubert II (Daubert v. Merrell Dow Pharmaceuticals, Inc. 43 F.3d 1311 (9th Circuit 1995)).


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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