Practice Tip: Deposition of Plaintiff's Expert

Two goals drive nearly all expert depositions: 1) lay the groundwork for a motion to exclude the witness's testimony; and 2) in the event the motion is denied, elicit testimony to fuel an attack on the witness's credibility at trial. Armed with the neatly packaged, enumerated criteria of Federal Rule of Evidence 702 and additional factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), practitioners dedicate weeks to breaking down the expert's written report systematically and crafting deposition questions that aim to establish:

• The opinion is based on insufficient facts or data;
• The opinion is based on unreliable principles or invalid methods; and
• The witness failed to apply the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702.

Before getting lost in the four corners of the written report, however, you should address the following threshold questions: Who is this person? Is he/she actually qualified to offer this opinion?

The Curriculum Vitae (CV)

Federal Rule of Civil Procedure 26(a)(2)(B)(iv) requires that the expert's qualifications be set forth in the written report, and witnesses routinely satisfy this requirement by appending their curriculum vitae (CV) to their report. The CV provides pages and pages of background information on the witness ' everything from education and employment history to publications and litigation experience. By investigating each component of the CV prior to the deposition as proposed below, you will stockpile ammunition that enables you to pick apart the witness's credentials and credibility with surgical precision. Be forewarned: Investigating the CV is a time-consuming endeavor, but one that often pays generous dividends. Indeed, the more information you gather on the plaintiff's expert, the harder it will be to decide what to use at deposition and what to save for trial. And that is certainly a great position in which to be!

General Internet Search

In the age of LinkedIn, Facebook and Twitter, you cannot afford to skip this step. Start the investigation by plugging in the witness's full name on your preferred Internet search engine (e.g., Google, Yahoo!). If the expert has a common name, include his/her address or job title in the search field to narrow the results.

What will you find? General Internet searches uncover the witness's footprint on the Web, including personal and professional Web sites; blogs; participation in chatrooms or other Web-based groups; syllabi from courses that he/she taught; articles and PowerPoint presentations that he/she authored; and videos of lectures or perhaps even testimony from prior litigation. Such materials provide invaluable information about the witness's views on the scientific, technical, or other specialized issues involved in your case. They might also yield direct statements by the witness about the particular products at issue. And who knows, you might hit the jackpot and discover prior inconsistent statements by the witness about issues germane to the principles and methods underlying his/her opinion.

Education, Training and Experience

To be considered an “expert” under Rule 702, a person must be qualified “by knowledge, skill, experience, training, or education.” A witness's qualifications “can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony.” Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990) (quoting Gladhill v. General Motors Corp., 743 F.2d 1049, 1052 (4th Cir. 1984)). Accordingly, you must investigate the witness's education and employment history to determine whether his/her expertise relates to the opinions rendered in your case.

Education

Start by confirming dates of attendance and honors and degrees awarded to the witness. Registrars' offices generally verify information over the phone, but you might be asked to submit a written request. Most registrars' offices can access student information dating back to the 1970s via computer records. Otherwise, the search will be limited to paper records and could take considerable time.

“Hired guns” often have sketchy educational backgrounds that require more digging. You should research carefully any institution that bears an unfamiliar name or exists outside of the United States. You might learn that the witness's degree was awarded by a non-accredited institution. Or you might learn that the witness completed the program via a correspondence course with a self-created curriculum based on independent study. Either way, the witness will be hard-pressed to convince a court that he/she is qualified by virtue of such education.

Training

The goal is to determine whether the witness participated in a residency, fellowship, or internship program in a field related to the claimed expertise. Use the Internet to learn about the program, especially its duration, the work experience offered, and the application process. Consider contacting the director of the program to fill in the gaps as necessary.

Equipped with this information, scrutinize the witness's CV for inconsistencies. For example, you might discover that the witness left a 12-month fellowship program after only six months. At deposition, confront the witness to determine whether he/she dropped out or was dismissed for cause. Likewise, knowing that the witness spent the entire internship studying rats, for instance, enables you to challenge the witness when he/she testifies to treating breast cancer patients during that program.

Experience

Rarely can you confirm the witness's day-to-day responsibilities for the positions identified in the CV by checking references via Internet or phone calls. If you cannot locate prior testimony that details the witness's job roles (see below), then you must wait until the deposition to get the fully story. Instead, focus on confirming the dates of employment, job titles, hospital affiliations, and teaching positions identified in the CV. Thereafter, scrutinize this section of the CV for exaggerations, omissions, and suspicious patterns.

For example, witnesses add “Senior” or “Supervising” to their job titles to boost the prestige of their position. This exaggeration might be harmless, but the misrepresentation will undercut the witness's credibility ' especially if you find several instances. Be suspicious whenever the CV lists teaching positions, chairs, positions on editorial boards for periodicals, and hospital privileges that have been held “through the present.” Witnesses frequently fail to update their CVs, and you might discover that the purported expert cut ties with these institutions decades ago. Inasmuch as the witness relies on a position to qualify him/her as an expert, it is critical to establish that the witness's experience happened too long ago to be relevant.

Frequent job changes should also raise red flags, especially if the witness is moving to less prestigious positions at lesser institutions. In fact, in a recent case, such a pattern was discovered and further research revealed that a plaintiff's causation expert had been convicted of plagiarism. The witness fell apart when confronted at deposition, as did the plaintiff's case.

Licenses and Certifications

The inquiry regarding licenses and certifications is two-fold. First, confirm that the witness has the reported credentials and determine whether he/she has a disciplinary record. Presenting evidence that an expert's license has been revoked or suspended is one of the most effective ways to challenge qualifications and credibility. The following Web sites are helpful resources:

• American Board of Medical Specialties (www.boardcertifieddocs.com);
• Federation of State Medical Boards (www.fsmb.org); and
• Administrators in Medicine (AIM), National Organization for State Medical & Osteopathic Board Executive Directors (http://www.docboard.org).

If the witness has a disciplinary record, consider contacting the Board of Medical Examiners for the relevant state to request documentation and hearing transcripts from the disciplinary action. Next, research the specific field or sub-specialty in which the witness is board certified to determine whether the discipline is relevant to his/her testimony. For example, at first blush you might not appreciate the difference between board certifications in anatomic pathology versus clinical pathology. But in a case where the classification of a bladder tumor is at issue, you can argue that a clinical pathologist (who analyzes bodily fluids, not tissue samples) is not qualified to offer an opinion.

Publications

The goal is to determine whether the witness has conducted any research related to the opinions rendered in your case and, if so, whether the research was accepted and published by a peer-reviewed journal. Although Rule 26(a)(2)(B)(iv) requires the witness to disclose “a list of all publications authored in the previous 10 years,” it is imperative to analyze the witness's entire body of work. Indeed, you should identify and, to some extent, review each and every article, book, dissertation, and presentation that the witness has ever published. Both Internet searches as well as your local university library are the best resources for this work.

This is the most onerous part of investigating the CV, because scanning the titles identified in the CV alone is not enough to determine relevance. At the very least, review each article's abstract and conclusions before casting it aside. If the publications detail research conducted on your product, related products, or the scientific or technical principles at the heart of the witness's opinion, you must analyze the substance of the paper and the circumstances surrounding the work. For example, journals require authors to submit disclosure statements with their draft abstracts that detail potential conflicts-of-interest, including their work as expert witnesses in litigation. Journals consider this information in evaluating the merit and reliability of research, and more often than not, you will learn that the witness “forgot” to disclose his/her expert work. Absent a subpoena, journals seldom will produce the witness's actual disclosure statement. However, you can obtain blank disclosure forms from the journals' respective websites for use at deposition.

Also, investigate the source of the witness's funding or human study subjects, which bears on the validity and reliability of the work. On more than one occasion, it was discovered that a plaintiff's expert conducted research with the assistance of a plaintiff's lawyer.

Litigation Experience

Hired guns, beware! Practitioners are no longer limited to the four-year litigation history that experts disclose under Rule 26(a)(2)(B)(v). Web-based expert witness databases allow you to identify prior cases in which the witness issued an expert report or offered testimony, as well as cases in which the testimony was challenged or excluded. Likewise, such databases maintain and sell copies of reports, transcripts, briefs and judicial opinions. Analyze materials from prior litigation to cull contradictory testimony about your product or similar products, the principles and methods the witness applied to reach conclusions in your case, or even the witness's qualifications. Challenge a witness's credibility by establishing that he/she has claimed expertise in an ever-expanding range of scientific or medical disciplines, and has opined that vastly differing products were defective and caused each and every plaintiff's alleged injuries. Cataloging all products and expertise covered in the witness's repertoire will go a long way to support your motion.

Also consider contacting other defense counsel who faced the witness in prior litigation to get their impressions about the witness's demeanor, hot buttons, and overall jury appeal. Finally, be sure to search for cases in which he/she was sued for professional malpractice ' a very effective angle to challenge a witness's qualifications.

Conclusion

Knowledge is power. The more you know about a purported expert's credentials before the deposition, the more effective you will be in laying the groundwork for a motion to exclude the witness's testimony. A few final thoughts on investigating a witness's CV:

• Start the process immediately after receiving the CV; the investigation will take at least two to three weeks.
• The Internet is the fastest, most cost-efficient way to compile information.

Be sure to subject your own experts to this scrutiny before serving reports on your adversary.

Diane Fleming Averell is Counsel to Porzio, Bromberg & Newman P.C. in Morristown, NJ, and a member of the firm's Complex Tort Practice Group. She concentrates her practice on the defense of Life Sciences companies and chemical manufacturers in product liability and mass tort litigation. She can be reached at 973-889-4150 and [email protected].

Two goals drive nearly all expert depositions: 1) lay the groundwork for a motion to exclude the witness's testimony; and 2) in the event the motion is denied, elicit testimony to fuel an attack on the witness's credibility at trial. Armed with the neatly packaged, enumerated criteria of Federal Rule of Evidence 702 and additional factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), practitioners dedicate weeks to breaking down the expert's written report systematically and crafting deposition questions that aim to establish:

• The opinion is based on insufficient facts or data;
• The opinion is based on unreliable principles or invalid methods; and
• The witness failed to apply the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702.

Before getting lost in the four corners of the written report, however, you should address the following threshold questions: Who is this person? Is he/she actually qualified to offer this opinion?

The Curriculum Vitae (CV)

Federal Rule of Civil Procedure 26(a)(2)(B)(iv) requires that the expert's qualifications be set forth in the written report, and witnesses routinely satisfy this requirement by appending their curriculum vitae (CV) to their report. The CV provides pages and pages of background information on the witness ' everything from education and employment history to publications and litigation experience. By investigating each component of the CV prior to the deposition as proposed below, you will stockpile ammunition that enables you to pick apart the witness's credentials and credibility with surgical precision. Be forewarned: Investigating the CV is a time-consuming endeavor, but one that often pays generous dividends. Indeed, the more information you gather on the plaintiff's expert, the harder it will be to decide what to use at deposition and what to save for trial. And that is certainly a great position in which to be!

General Internet Search

In the age of LinkedIn, Facebook and Twitter, you cannot afford to skip this step. Start the investigation by plugging in the witness's full name on your preferred Internet search engine (e.g., Google, Yahoo!). If the expert has a common name, include his/her address or job title in the search field to narrow the results.

What will you find? General Internet searches uncover the witness's footprint on the Web, including personal and professional Web sites; blogs; participation in chatrooms or other Web-based groups; syllabi from courses that he/she taught; articles and PowerPoint presentations that he/she authored; and videos of lectures or perhaps even testimony from prior litigation. Such materials provide invaluable information about the witness's views on the scientific, technical, or other specialized issues involved in your case. They might also yield direct statements by the witness about the particular products at issue. And who knows, you might hit the jackpot and discover prior inconsistent statements by the witness about issues germane to the principles and methods underlying his/her opinion.

Education, Training and Experience

To be considered an “expert” under Rule 702, a person must be qualified “by knowledge, skill, experience, training, or education.” A witness's qualifications “can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony.” Carroll v. Otis Elevator Co. , 896 F.2d 210, 212 (7th Cir. 1990) (quoting Gladhill v. General Motors Corp. , 743 F.2d 1049, 1052 (4th Cir. 1984)). Accordingly, you must investigate the witness's education and employment history to determine whether his/her expertise relates to the opinions rendered in your case.

Education

Start by confirming dates of attendance and honors and degrees awarded to the witness. Registrars' offices generally verify information over the phone, but you might be asked to submit a written request. Most registrars' offices can access student information dating back to the 1970s via computer records. Otherwise, the search will be limited to paper records and could take considerable time.

“Hired guns” often have sketchy educational backgrounds that require more digging. You should research carefully any institution that bears an unfamiliar name or exists outside of the United States. You might learn that the witness's degree was awarded by a non-accredited institution. Or you might learn that the witness completed the program via a correspondence course with a self-created curriculum based on independent study. Either way, the witness will be hard-pressed to convince a court that he/she is qualified by virtue of such education.

Training

The goal is to determine whether the witness participated in a residency, fellowship, or internship program in a field related to the claimed expertise. Use the Internet to learn about the program, especially its duration, the work experience offered, and the application process. Consider contacting the director of the program to fill in the gaps as necessary.

Equipped with this information, scrutinize the witness's CV for inconsistencies. For example, you might discover that the witness left a 12-month fellowship program after only six months. At deposition, confront the witness to determine whether he/she dropped out or was dismissed for cause. Likewise, knowing that the witness spent the entire internship studying rats, for instance, enables you to challenge the witness when he/she testifies to treating breast cancer patients during that program.

Experience

Rarely can you confirm the witness's day-to-day responsibilities for the positions identified in the CV by checking references via Internet or phone calls. If you cannot locate prior testimony that details the witness's job roles (see below), then you must wait until the deposition to get the fully story. Instead, focus on confirming the dates of employment, job titles, hospital affiliations, and teaching positions identified in the CV. Thereafter, scrutinize this section of the CV for exaggerations, omissions, and suspicious patterns.

For example, witnesses add “Senior” or “Supervising” to their job titles to boost the prestige of their position. This exaggeration might be harmless, but the misrepresentation will undercut the witness's credibility ' especially if you find several instances. Be suspicious whenever the CV lists teaching positions, chairs, positions on editorial boards for periodicals, and hospital privileges that have been held “through the present.” Witnesses frequently fail to update their CVs, and you might discover that the purported expert cut ties with these institutions decades ago. Inasmuch as the witness relies on a position to qualify him/her as an expert, it is critical to establish that the witness's experience happened too long ago to be relevant.

Frequent job changes should also raise red flags, especially if the witness is moving to less prestigious positions at lesser institutions. In fact, in a recent case, such a pattern was discovered and further research revealed that a plaintiff's causation expert had been convicted of plagiarism. The witness fell apart when confronted at deposition, as did the plaintiff's case.

Licenses and Certifications

The inquiry regarding licenses and certifications is two-fold. First, confirm that the witness has the reported credentials and determine whether he/she has a disciplinary record. Presenting evidence that an expert's license has been revoked or suspended is one of the most effective ways to challenge qualifications and credibility. The following Web sites are helpful resources:

• American Board of Medical Specialties (www.boardcertifieddocs.com);
• Federation of State Medical Boards (www.fsmb.org); and
• Administrators in Medicine (AIM), National Organization for State Medical & Osteopathic Board Executive Directors (http://www.docboard.org).

If the witness has a disciplinary record, consider contacting the Board of Medical Examiners for the relevant state to request documentation and hearing transcripts from the disciplinary action. Next, research the specific field or sub-specialty in which the witness is board certified to determine whether the discipline is relevant to his/her testimony. For example, at first blush you might not appreciate the difference between board certifications in anatomic pathology versus clinical pathology. But in a case where the classification of a bladder tumor is at issue, you can argue that a clinical pathologist (who analyzes bodily fluids, not tissue samples) is not qualified to offer an opinion.

Publications

The goal is to determine whether the witness has conducted any research related to the opinions rendered in your case and, if so, whether the research was accepted and published by a peer-reviewed journal. Although Rule 26(a)(2)(B)(iv) requires the witness to disclose “a list of all publications authored in the previous 10 years,” it is imperative to analyze the witness's entire body of work. Indeed, you should identify and, to some extent, review each and every article, book, dissertation, and presentation that the witness has ever published. Both Internet searches as well as your local university library are the best resources for this work.

This is the most onerous part of investigating the CV, because scanning the titles identified in the CV alone is not enough to determine relevance. At the very least, review each article's abstract and conclusions before casting it aside. If the publications detail research conducted on your product, related products, or the scientific or technical principles at the heart of the witness's opinion, you must analyze the substance of the paper and the circumstances surrounding the work. For example, journals require authors to submit disclosure statements with their draft abstracts that detail potential conflicts-of-interest, including their work as expert witnesses in litigation. Journals consider this information in evaluating the merit and reliability of research, and more often than not, you will learn that the witness “forgot” to disclose his/her expert work. Absent a subpoena, journals seldom will produce the witness's actual disclosure statement. However, you can obtain blank disclosure forms from the journals' respective websites for use at deposition.

Also, investigate the source of the witness's funding or human study subjects, which bears on the validity and reliability of the work. On more than one occasion, it was discovered that a plaintiff's expert conducted research with the assistance of a plaintiff's lawyer.

Litigation Experience

Hired guns, beware! Practitioners are no longer limited to the four-year litigation history that experts disclose under Rule 26(a)(2)(B)(v). Web-based expert witness databases allow you to identify prior cases in which the witness issued an expert report or offered testimony, as well as cases in which the testimony was challenged or excluded. Likewise, such databases maintain and sell copies of reports, transcripts, briefs and judicial opinions. Analyze materials from prior litigation to cull contradictory testimony about your product or similar products, the principles and methods the witness applied to reach conclusions in your case, or even the witness's qualifications. Challenge a witness's credibility by establishing that he/she has claimed expertise in an ever-expanding range of scientific or medical disciplines, and has opined that vastly differing products were defective and caused each and every plaintiff's alleged injuries. Cataloging all products and expertise covered in the witness's repertoire will go a long way to support your motion.

Also consider contacting other defense counsel who faced the witness in prior litigation to get their impressions about the witness's demeanor, hot buttons, and overall jury appeal. Finally, be sure to search for cases in which he/she was sued for professional malpractice ' a very effective angle to challenge a witness's qualifications.

Conclusion

Knowledge is power. The more you know about a purported expert's credentials before the deposition, the more effective you will be in laying the groundwork for a motion to exclude the witness's testimony. A few final thoughts on investigating a witness's CV:

• Start the process immediately after receiving the CV; the investigation will take at least two to three weeks.
• The Internet is the fastest, most cost-efficient way to compile information.

Be sure to subject your own experts to this scrutiny before serving reports on your adversary.

Diane Fleming Averell is Counsel to Porzio, Bromberg & Newman P.C. in Morristown, NJ, and a member of the firm's Complex Tort Practice Group. She concentrates her practice on the defense of Life Sciences companies and chemical manufacturers in product liability and mass tort litigation. She can be reached at 973-889-4150 and [email protected].