<i>Voir Dire</i> of Expert Witnesses

The use of expert testimony is essential in almost all medical malpractice cases. In order to survive summary judgment or directed verdict, the plaintiff must usually submit expert testimony relating to the proper standard of care as well as causation. In most states, in the absence of res ipsa loquitur, the proper medical standard of care must be established by an expert from the medical community and not by a lay witness. Because of the complexity of most medical practice cases, it is often impossible for the fact finders to intelligently evaluate the facts without the application of expert knowledge.

In a jury trial, the jury will customarily compare opposing experts to make an initial determination as to which expert to believe and how much weight to assign to the testimony of each. One of the primary ways in which jurors decide which expert to believe is a comparison of qualifications.

Because experts are critical in determining the applicable medical standard of care, excluding or limiting an opposing party's expert testimony can often make or break a case. Although exclusion is uncommon, a good trial attorney should always consider ways in which to effectively cross-examine an opposing party's expert on his or her qualifications. At best, an attack on an opposing expert's qualifications may completely preclude him or her from testifying as an expert. If exclusion is not an option, it may be possible to limit the areas in which the expert is permitted to testify. An attack on an opposing expert's qualifications may also, even if the expert is qualified, serve to discredit the expert's testimony and to convince the jurors that they should not give the expert's testimony great weight.

Admissibility of Expert Testimony

In ruling on the admissibility of expert testimony, a court must consider the following: 1) whether the expert is qualified to testify competently regarding the matters he or she intends to address; 2) whether the methodology by which the expert reaches his or her conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert or Frye; and 3) whether the testimony will assist the trier of fact through the application of scientific, technical or specialized expertise to understand the evidence or to determine a fact in issue.

The judge, of course, is the ultimate decision-maker on whether an expert is qualified and in which areas of expertise. It is usually within the trial court's exercise of sound discretion to determine whether a witness's qualifications have been established and whether the witness may testify in the expert capacity. The trial court's determination is typically reversible only on a finding of abuse of discretion. While the trial court decides whether a witness can express his or her opinions, the trier of fact ultimately decides how much weight to place on those opinions. Marcus Z. Shar, Esq., Expert Witnesses, The Medical Malpractice and Managed Care Law of Maryland, Sec. I, Ch. 5, p. 6 (Md. Instit. for Continuing Prof'l Educ. of Lawyers, Inc., 2001).

All states have their own rules regarding expert witnesses, but most states have at least loosely modeled their rules after the Federal Rules of Evidence. Although this article is meant to present the most widely followed practices, it is imperative to check both state and local rules before relying on the following general propositions.

Voir dire, or a preliminary cross-examination that takes place prior to the direct examination of an opposing expert's qualifications, is a useful, often under-appreciated, tool to preclude, limit, or discredit expert testimony. We addresses only evidentiary voir dire in this article, not Daubert/Frye hearings regarding the admissibility of scientific evidence. Daubert/Frye hearings are aimed at determining the reliability of the science presented in a case and the general acceptance of that science within the scientific community. Evidentiary voir dire, on the other hand, is meant to determine the relative qualifications of proffered expert witnesses and the admissibility of his or her testimony. Thomas F. Liotti, Evidentiary Voir Dire, Champion 26, 28 (May 2002).

Practice Pointers and Strategy

Prudent pretrial and trial practice requires thorough preparation. The first, and arguably most important, step in effectively dealing with opposing experts is to know everything there is to know about the expert and his or her background. Aside from all the obvious information that can be gleaned from Internet research, expert tracking companies, a well-conducted deposition, the expert's curriculum vitae, and Freedom of Information Act requests, there are several other very useful investigative strategies that should be considered if applicable. A proposed expert's credentials should always be verified, as should his or her board certifications and/or eligibilities. It is also prudent to verify the status of the witness's hospital privileges and, if relevant, to research any revocations or suspensions of those privileges. Investigation of a proposed expert should include checking with colleagues as to the witness's reputation, obtaining copies of any prior depositions the witness may have given and/or transcripts from any trial the witness may have participated in. It is also prudent to inquire as to whether the witness has ever been the subject of discipline or formal investigation by his or her state board and to obtain any reported judicial opinions involving the witness's credentials. Finally, if there is reason to suspect the witness is untruthful, it may be worthwhile to subpoena his or her records from the applicable certifying board.

The prudent trial lawyer should consider filing a pretrial motion in limine to exclude or limit the proffered expert's testimony based on the expert's lack of qualification under Federal Rule of Evidence 702. Although these motions are often unsuccessful at the pretrial stage, they may serve to heighten the judge's awareness of the witness' weaknesses, make the judge skeptical, and make him or her more likely to preclude or limit the expert's testimony during trial.

After pretrial preparation, the party opposing an expert must focus on minimizing the damage the proffered expert may create at trial. When a witness intending to give expert testimony is initially called at trial, the opposing party has the option of avoiding a ruling by the court by offering to stipulate that the witness is an expert. (Always decline such an offered stipulation for your own expert if his or her qualifications are even moderately impressive.) Offering to stipulate is most effective where the proffered witness has impressive credentials and is sure to be qualified or where the proffered witness possesses more impressive qualifications than does the opposing party's expert. If the opposing party stipulates as to the expert's qualifications, it may prevent the proponent from presenting the witness' qualifications to the jury. For this reason, the offer to stipulate is often rejected by the expert's proponent. (It should be noted that some courts might permit the proponent to accept the stipulation but proceed with the presentation of the expert's qualifications in the presence of the jury in order to permit the jury to assign weight to the expert's testimony.) Even if an offer to stipulate is not accepted, the offer itself may induce the jury to pay less attention during the presentation of the witness's qualifications.

In order for a witness to testify as an expert at trial, the witness' proponent must lay a foundation as to the witness' qualifications. Direct examination on a witness's qualifications serves not only to meet the Rule 702 qualification requirements, but also to impress and bolster the witness' credibility in the eyes of the jury.

As soon as the proponent has gone through all of the witness' qualifications, the proponent may offer the witness as an expert and ask that the witness be qualified as an expert, or in some states, the proponent may continue straight to the substantive questioning of the witness. In states where the proponent is permitted to proceed with questioning, the opposing party must make any objection they may have as to qualifications when the presenting attorney moves to substantive questioning.

The use of expert testimony is essential in almost all medical malpractice cases. In order to survive summary judgment or directed verdict, the plaintiff must usually submit expert testimony relating to the proper standard of care as well as causation. In most states, in the absence of res ipsa loquitur, the proper medical standard of care must be established by an expert from the medical community and not by a lay witness. Because of the complexity of most medical practice cases, it is often impossible for the fact finders to intelligently evaluate the facts without the application of expert knowledge.

In a jury trial, the jury will customarily compare opposing experts to make an initial determination as to which expert to believe and how much weight to assign to the testimony of each. One of the primary ways in which jurors decide which expert to believe is a comparison of qualifications.

Because experts are critical in determining the applicable medical standard of care, excluding or limiting an opposing party's expert testimony can often make or break a case. Although exclusion is uncommon, a good trial attorney should always consider ways in which to effectively cross-examine an opposing party's expert on his or her qualifications. At best, an attack on an opposing expert's qualifications may completely preclude him or her from testifying as an expert. If exclusion is not an option, it may be possible to limit the areas in which the expert is permitted to testify. An attack on an opposing expert's qualifications may also, even if the expert is qualified, serve to discredit the expert's testimony and to convince the jurors that they should not give the expert's testimony great weight.

Admissibility of Expert Testimony

In ruling on the admissibility of expert testimony, a court must consider the following: 1) whether the expert is qualified to testify competently regarding the matters he or she intends to address; 2) whether the methodology by which the expert reaches his or her conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert or Frye; and 3) whether the testimony will assist the trier of fact through the application of scientific, technical or specialized expertise to understand the evidence or to determine a fact in issue.

The judge, of course, is the ultimate decision-maker on whether an expert is qualified and in which areas of expertise. It is usually within the trial court's exercise of sound discretion to determine whether a witness's qualifications have been established and whether the witness may testify in the expert capacity. The trial court's determination is typically reversible only on a finding of abuse of discretion. While the trial court decides whether a witness can express his or her opinions, the trier of fact ultimately decides how much weight to place on those opinions. Marcus Z. Shar, Esq., Expert Witnesses, The Medical Malpractice and Managed Care Law of Maryland, Sec. I, Ch. 5, p. 6 (Md. Instit. for Continuing Prof'l Educ. of Lawyers, Inc., 2001).

All states have their own rules regarding expert witnesses, but most states have at least loosely modeled their rules after the Federal Rules of Evidence. Although this article is meant to present the most widely followed practices, it is imperative to check both state and local rules before relying on the following general propositions.

Voir dire, or a preliminary cross-examination that takes place prior to the direct examination of an opposing expert's qualifications, is a useful, often under-appreciated, tool to preclude, limit, or discredit expert testimony. We addresses only evidentiary voir dire in this article, not Daubert/Frye hearings regarding the admissibility of scientific evidence. Daubert/Frye hearings are aimed at determining the reliability of the science presented in a case and the general acceptance of that science within the scientific community. Evidentiary voir dire, on the other hand, is meant to determine the relative qualifications of proffered expert witnesses and the admissibility of his or her testimony. Thomas F. Liotti, Evidentiary Voir Dire, Champion 26, 28 (May 2002).

Practice Pointers and Strategy

Prudent pretrial and trial practice requires thorough preparation. The first, and arguably most important, step in effectively dealing with opposing experts is to know everything there is to know about the expert and his or her background. Aside from all the obvious information that can be gleaned from Internet research, expert tracking companies, a well-conducted deposition, the expert's curriculum vitae, and Freedom of Information Act requests, there are several other very useful investigative strategies that should be considered if applicable. A proposed expert's credentials should always be verified, as should his or her board certifications and/or eligibilities. It is also prudent to verify the status of the witness's hospital privileges and, if relevant, to research any revocations or suspensions of those privileges. Investigation of a proposed expert should include checking with colleagues as to the witness's reputation, obtaining copies of any prior depositions the witness may have given and/or transcripts from any trial the witness may have participated in. It is also prudent to inquire as to whether the witness has ever been the subject of discipline or formal investigation by his or her state board and to obtain any reported judicial opinions involving the witness's credentials. Finally, if there is reason to suspect the witness is untruthful, it may be worthwhile to subpoena his or her records from the applicable certifying board.

The prudent trial lawyer should consider filing a pretrial motion in limine to exclude or limit the proffered expert's testimony based on the expert's lack of qualification under Federal Rule of Evidence 702. Although these motions are often unsuccessful at the pretrial stage, they may serve to heighten the judge's awareness of the witness' weaknesses, make the judge skeptical, and make him or her more likely to preclude or limit the expert's testimony during trial.

After pretrial preparation, the party opposing an expert must focus on minimizing the damage the proffered expert may create at trial. When a witness intending to give expert testimony is initially called at trial, the opposing party has the option of avoiding a ruling by the court by offering to stipulate that the witness is an expert. (Always decline such an offered stipulation for your own expert if his or her qualifications are even moderately impressive.) Offering to stipulate is most effective where the proffered witness has impressive credentials and is sure to be qualified or where the proffered witness possesses more impressive qualifications than does the opposing party's expert. If the opposing party stipulates as to the expert's qualifications, it may prevent the proponent from presenting the witness' qualifications to the jury. For this reason, the offer to stipulate is often rejected by the expert's proponent. (It should be noted that some courts might permit the proponent to accept the stipulation but proceed with the presentation of the expert's qualifications in the presence of the jury in order to permit the jury to assign weight to the expert's testimony.) Even if an offer to stipulate is not accepted, the offer itself may induce the jury to pay less attention during the presentation of the witness's qualifications.

In order for a witness to testify as an expert at trial, the witness' proponent must lay a foundation as to the witness' qualifications. Direct examination on a witness's qualifications serves not only to meet the Rule 702 qualification requirements, but also to impress and bolster the witness' credibility in the eyes of the jury.

As soon as the proponent has gone through all of the witness' qualifications, the proponent may offer the witness as an expert and ask that the witness be qualified as an expert, or in some states, the proponent may continue straight to the substantive questioning of the witness. In states where the proponent is permitted to proceed with questioning, the opposing party must make any objection they may have as to qualifications when the presenting attorney moves to substantive questioning.