Trial Practice Series: To Expert or Not To Expert: That is the Question

WDC Journal Edition: Spring 2018
By: Michael P. Crooks, von Briesen & Roper, s.c. and William R. Wick, Nash, Spindler, Grimstad & McCracken, LLP

INTRODUCTION

The more complex the litigation, the more likely the need for an expert to properly defend the case. The goal of this article is to focus on the most common type of experts needed in litigation and the effective use of expert witnesses. The most common types of experts are medical experts, liability/reconstruction experts, vocational experts, economic experts, and case specific specialty experts (electricians, plumbers, design experts, safety experts, product experts, insurance experts).

The best way to find an expert is through word of mouth from colleagues with similar cases, or similar issues. You might also consider using one of the many expert witness services that exist to provide litigation support. Regardless of whether your expert comes from a referral or a service, the biased cross examination associated with the hired litigation expert will be the same. Unfortunately, it is a necessary evil of the system.

Wisconsin adopted the Daubert standard in 2011 to be used to evaluate evidence under Wis. Stat. § 907.027. Following Wisconsin’s adoption of the Daubert standard, a number of cases have come down from the Court of Appeals and the Supreme Court. The key cases are included within the body of this article.


WHEN ARE EXPERTS NECESSARY?

Expert witnesses are necessary to prove specialized technical elements of both the plaintiff’s case in chief and the defense. A good rule of thumb for defense lawyers is to consider an expert of like kind to that of any expert retained by the plaintiff. The specific rule relative to the admission of expert witness testimony can be found in the Wisconsin Rules of Evidence under Wis. Stat. § 907.02, which states:

Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Over time, a nuanced approach with respect to expert witnesses from the defense perspective has developed. If possible, the hope is that you can depose the plaintiff’s experts, elicit certain admissions, and hope that those admissions are sufficient to negate the need for a defense expert. The goal is to obtain enough admissions from the plaintiff’s expert that the most salient points can be made without the need to resort to an outside expert to prove the points necessary to defend that aspect of the case.

Examples of this type of testimony include the lack of need for future treatment, the significant recovery made by the plaintiff, the return to pre-accident capacity, the lack of limitations or restrictions, the contribution of pre-existing changes to the same area of the body, and uncertainties which exist in the expert opinions. A conservative opinion from the plaintiff’s doctors or other experts goes a long way toward helping to control the case from the defense perspective. Additionally, from time to time, the plaintiff’s expert’s deposition may reveal a lack of foundation by that expert on the opinions he or she intends to offer. This allow the defense to file a motion to either limit or exclude that expert’s testimony under Daubert.


WHERE TO GO TO GET EXPERTS

A. Valued and Trusted Colleagues

Every one of us has several people that make the list of valued and trusted colleagues. Often times, lawyers on the same side of the ledger are leery about sharing their experts because they do not want them to get “used up” or be unavailable when they are needed by the source. You need to be willing to engage in a quid pro quo if your source is going to be other lawyers. Keep a running list of those experts that you have used, as well as those which you have encountered in other cases, so that you can share this with valued and trusted colleagues to keep the flow of information moving in both directions. This is by far the best source of expert witnesses.

B. Like-Minded Groups/Websites

The Wisconsin Defense Counsel, the Wisconsin Association for Justice, and the national arms of both groups all have websites and private e-mail communications where experts can be shared and evaluated/rated. This is the second best option for expert retention, as you likely will receive the candid comments of someone who had an opportunity to use these experts in the litigation setting before your retention. Often you can obtain deposition transcripts, reports, CVs, and fee schedules through these websites or expert communication discussion groups. This information is usually very reliable.

C. Expert Witness Services

There are numerous expert witness services throughout the state and country. Many of these specialize in a certain type of expert. Others provide access to a myriad of experts. Below is a list of some of the services that the authors have used in the past.

Skogen Engineering (reconstruction/products issues)
Krenz Engineering (reconstruction/products issues)
Crane Engineering (reconstruction/products issues)
Medical Systems (IME)
CorVel Corporation (IME)
Exponent (all types)
Safety Engineering Associates (all types)
Todd LaVieri of Omnitec Engineering, Inc. (products/engineering issues)
Dave DeVries of FireTech Engineering, Inc. (fire/fire protection)
Chris Korinek of Synergy Technologies (electrical issues)
Cal Phillips & Associates (fire loss) EFI
Meredith Renschler & Associates (accounting)
Kevin Schutz of Professional Rehabilitation Services, Inc. (vocational)
Curt Reynolds & Associates of Insight
Forensic Accountants, S.C. (economist)

This list is far from exhaustive, and there are numerous other qualified experts out there for use in the appropriate cases.

D. Other Cases

Lawyers in the business of civil litigation often communicate with each other about their experts, including issuing opinions about performances and utility. Many times you will hear about a specific trial or a settlement on the eve of trial. With the new electronic age, you can discover experts in virtually any federal case, and in some state court cases. While this requires knowledge of the cases that are tried, these experts are usually battle-tested and proven.

CHALLENGES TO EXPERT TESTIMONY

Cross-examination. The most common and effective way to challenge expert testimony is via targeted cross-examination. All the rules and strategies for effective cross-examination need to be employed. Thorough knowledge of the topic on which the expert will testify is essential. Effective cross-examination of an expert requires counsel to not only know the subject matter but to be able to speak the language of the expert, including proper pronunciation of the terms and the understanding of the concepts to be employed by the expert in arriving at the expert’s opinions.

Proper techniques for cross-examination of an expert are beyond the scope of this article but the fundamental rules of cross-examination apply such as: (1) never asking a question for which the answer is not known, (at trial, not deposition, unless going down in a ball of flames); (2) limiting the expert’s testimony by concise, leading questions seeking yes or no answers when at all possible; (3) not allowing the expert simply to reiterate the direct testimony; and (4) developing a number of key points to obtain from the expert in favor of your position. The bases for challenging the opinions of experts are set forth below under general topics to be used in challenging expert testimony.

The testimony is unnecessary. Expert testimony is necessary only if the subject matter involves a special knowledge, skill, or experience which is not in the realm of the ordinary experience of the jurors. If the jury can draw its own conclusions from the evidence without the aid of an expert, such testimony is not only unnecessary but is improper. On the other hand, there are clearly cases where expert testimony is necessary and failure to provide it results in an insufficiency of proof. A jury is not generally bound by the testimony of any expert. However, in some circumstances the lack of expert testimony on the subject matter of the case – such as medical negligence – prevents a jury from reaching an opinion. If the jury does not believe the experts’ testimony, then the party has failed to prove its burden of proof.

Expert testimony has been held to be inadmissible where the jury could form a reliable opinion as to whether a particular machine, place, or mode of doing business was dangerous. An expert must be qualified and his opinions must aid the jury in reaching their decision. Whether an expert’s opinion is necessary depends on whether the members of the jury, having knowledge and general experience common to every member of the community, are aided in consideration of the issues by the testimony offered. If the jury is able to draw its own conclusion without the assistance of expert testimony, the admission of such testimony is not only unnecessary but improper. The test is whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from an expert.

To truly assist the jury, the expert testimony must do something other than tell the jury how to decide the case. Lee v. Anderson states that opinions that would merely tell the jury what results are reached are not admissible. An example of unnecessary expert testimony is a property manager testifying to the frequency with which a property should be inspected.

The expert is not qualified to offer the opinion. It is rare to have an individual without credentials identified as an expert and called to testify. The issue becomes whether the expert offers opinions on which he or she is qualified to testify. Frequently, expert witnesses will offer opinions beyond the scope of the expert’s specialty. The Court determines whether the witness has sufficient knowledge, skill, education or experience to give an expert opinion. This decision rests within the sound discretion of the trial court. Courts typically permit a person to testify as an expert in a field for which the person was licensed, such as medicine, engineering, accounting, etc. However, the qualification of an expert is not a matter limited solely to licensure.

The Court can conclude that a person’s background, training, or experience is sufficient to allow the person to offer an expert opinion without licensure. From time to time, an “expert” will offer opinions for which he or she is not qualified. For example, a property manager may attempt to testify about the applicability of building codes, an engineer may offer opinions about the work of a plumber, a family physician may offer an opinion about the need for a lumbar fusion, or a police officer may offer an opinion about the force of the impact. Whether the expert is qualified depends on the background, experience, and training of the expert. A person may be qualified as an expert witness based on personal experience or knowledge; however, the expert’s opinion must have a reliable basis in knowledge and experience of the expert’s discipline. Thus, a person qualified in one specialty or discipline may not venture into an area for which they are not qualified.

An expert must have some degree of experience in the field in which he is offering testimony in addition to background and training. A foundation for admissibility requires knowledge of the practices and procedures employed within the discipline about which the opinion is offered.

The expert must also be aware of the standard applicable to the field in which the opinion is offered. There are many jury instructions that define the standard for a profession or trade, such as instructions applicable to building contractors, insurance agents, teachers, chiropractors, doctors, nurses, technicians and lawyers. Thus, an expert witness, be it a doctor, engineer, or any other field, is required to know the applicable standard of care in that particular field. A foundation for admissibility requires knowledge of the practices and procedures in the discipline or subject matter about which the opinion is offered.

Examples of limiting an expert to the expert’s field of expertise can be gleaned from the cases involving medical experts. The Wisconsin law has been changed with the adoption of Daubert as related to Wis. Stat. § 907.02. Before the adoption of the new law, an expert opinion was admissible if the expert was qualified and the opinion would assist the jury. The procedure for challenging expert testimony was primarily cross-examination, but even under the old standard, the requisite degree of knowledge and qualification was required. Admissibility was not conditioned on reliability of the opinions, but rather the relevancy, qualifications and assistance to the trier of fact. However, even before the new statute was adopted, the law required knowledge of the background.

For example, Enea v. Linn deals with the qualification of an obstetrician/gynecologist to offer opinions about neurological injuries. The plaintiffs claimed that the trial court erred because an obstetrician/gynecologist was qualified to testify about the medical processes that caused the injury. The Court of Appeals agreed and reversed. The Court agreed that the obstetrician was not qualified to diagnose a neurological injury, but that an obstetrician was qualified to testify about the cause of identified neurological damage. A close reading of this case suggests that the trial court and the Court of Appeals allow specialists to testify only within their field of expertise.

It’s debated whether experts in different specialties or disciplines may testify on the same issue (i.e., a surgeon testifying on issues of internal medicine or an orthopedic surgeon on chiropractic issues). Areas of specialization and even sub-specialization have been developed in professions, most particularly in healthcare. In some instances, specialties overlap. Wisconsin law has not confined the testimony of a medical doctor to his area of specialty. However, the expert still needs substantial experience or expertise on the procedure or condition at issue; if the expert does not have this experience or expertise, the court may bar the testimony’s admission. Thus, a chiropractor or orthopedic surgeon may testify on similar issues provided there is a sufficient foundation to show knowledge and experience to offer an opinion on the treatment or condition rather than on the basis of discipline or specialization.

An expert witness is not allowed to testify about the credibility or truthfulness of another witness. Wisconsin law is clear in this regard as credibility of a witness is for the jury to decide. The holdings of State v. Haseltine and its progeny indicate that witnesses, expert or otherwise, cannot comment on the truthfulness of another witness: “No witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth.”

While direct testimony concerning another witness’ credibility and truthfulness is inappropriate, experts can testify to observations that bear on credibility. Likewise, while an expert cannot testify about the truth or accuracy of another witness’ testimony, it has been held that symptoms that are common to a certain diagnosis can be offered and that certain behavior is consistent with objective signs and symptoms that would be observed by a physician. Physicians often offer opinions about signs and symptoms consistent with symptom magnification, malingering and/or complaints that are not consistent with known anatomic principles.

In summary, expert testimony may be limited at the discretion of the Court based upon the witness’ field of expertise. An expert must testify in the field in which he or she is qualified based on knowledge, training, background, and experience. A vocational expert may attempt to offer an opinion about the nature and extent of the disability or the present value of a future loss. A medical doctor may attempt to offer opinion on the reasonableness and necessity of chiropractic care. Consideration must be given to the background, training, and expertise of the expert in confining the expert to his or her field of expertise.

Opinions offered to less than their required standard. The plaintiff has the burden of proof, and expert opinions should be offered to a reasonable degree of certainty within the expert’s field. An expert opinion expressed in terms of possibility or conjecture is insufficient and is therefore inadmissible. Thus, an expert’s opinion should be phrased to state that opinion to a reasonable degree of probability or certainty in the expert’s field. No words of art are required. Opinions expressed in terms of “I feel”, “I believe”, “In my view” and incorporating terms such as “liable”, “likely”, and “probable” are accepted as expressing an opinion to a probability as opposed to a possibility. No particular phraseology is required. Terms such as “might”, “could”, “perhaps”, and “possible” are not sufficient to reach the required burden of proof. It is the intent of the testimony that is determinative. The test is not the words but the context or meaning.

Possibility Sometimes Enough. While the party having the burden of proof is required to offer opinions to a reasonable probability or certainty, the testimony can be challenged by questioning the expert about possibilities. Parties without the burden of proof may attempt to offer expert testimony based on possibilities. This is because it is sometimes difficult to express an opinion about a particular element of the case to the requisite degree of certainty – for example, medical causation – but there may be a number of reasonable possible explanations. Opinions couched in terms of possibilities based upon adequate data or proof are admissible to defeat a claim by suggesting explanations other than those propounded by the plaintiff. In other words, contrary opinions may be expressed in terms of possibilities.

The law in Wisconsin is that contrary opinions may be offered in terms of possibility. Although the party with the burden of proof must produce testimony based upon reasonable medical probabilities, the opposing party may attempt to weaken the claim with proof couched in terms of possibility. Direct examination on possibilities is proper. The opinion to which the expert is asked to opine to a reasonable possibility must be presented in opposition to an opinion presented by the plaintiff’s expert, and there must be some scientific or medical basis for the opinion.

No new opinions. Many courts require that the opposing party be advised of the expert opinions that will be offered, usually in the form of a report or summary of the expert’s opinions. In addition, opinions are discovered by deposition. Expert opinions may be limited to those expressed prior to trial. The purpose of a scheduling order and mandatory expert disclosure is to allow for the exchange of information and the orderly discovery of expert opinions in advance of trial. To allow an expert witness to testify about opinions that have not yet been disclosed would be prejudicial to the defendants, who are required to rely on the Court’s scheduling order when preparing for this trial.

To permit an expert to testify to opinions not expressed in a report or deposition would constitute surprise, would be prejudicial, and would circumvent the intent of the Court’s scheduling order. The experts should not be allowed to walk into court with new or different opinions than those provided in the reports.

While surprise is not an enumerated ground for the exclusion of evidence in Wis. Stat. § 904.03, testimony that results in a surprise may be excluded if the surprise would require a continuance causing delay or if the surprise is coupled with the danger of prejudice and confusion of the issues. If plaintiffs’ experts are allowed to offer new or different opinions at trial, that would create a need for a continuance of the trial to conduct additional pre-trial discovery depositions. Also, allowing the experts to offer new or different opinions to the jury without allowing defense counsel the benefit of having deposed them would be prejudicial.

This objection may be overcome. The expert may claim that he or she is merely explaining or embellishing on previously-offered testimony, that the opinion was stated generally in the report but not discussed in detail during deposition, or that the expert is merely offering additional detail.

The Daubert Challenge. Wis. Stats. §§ 907.01, 907.02 and 907.03 were adopted to limit the admissibility of expert testimony and conform with the Federal Rules of Evidence 702 and Daubert v. Merrell Dow Pharm. which provide that the court serves as a gatekeeper, ensuring that expert testimony is relevant and reliable. These Wisconsin statutory sections also deal with the admissibility, background, and qualifications of an expert and provide, in relevant part, as follows:

907.02 Testimony by experts. (1) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.

907.03 Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion or inference substantially outweighs their prejudicial effect.

Under Wis. Stat. § 907.02, the court must consider three primary requirements in determining the admissibility of expert testimony: (1) qualifications of the expert witness, (2) relevance of the testimony, and (3) reliability of the principles and methodology upon which the testimony is based. Wis. Stat. § 907.03 provides that the court may exclude evidence if its probative value is substantially outweighed by the potential for prejudice.

The trial court must find that each expert witness meets three statutory criteria before allowing that expert to testify:

• The testimony is based upon sufficient facts or data;

• The testimony is the product of reliable principles and methods; and

• The witness has applied the principles and methods reliably to the facts of the case.

While the three factors set forth above mirror the federal standards on this issue, reviewing courts have repeatedly implored trial courts not to consider any factor or set of factors exhaustive or cumulative and to, instead, apply the factors relevant to each particular inquiry.

The specific factors identified in Daubert are: (1) whether the expert’s technique or theory can be or has been tested – that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community.

Of significance is the fact that the proponent of the expert bears the burden of demonstrating that the expert’s testimony satisfies the Daubert standard by the preponderance of the evidence. Courts have gone so far as to imply that the presumption should be against allowing the expert witness to testify if the opinions offered are solely for the purpose of litigation and without objective proof of reliability.

Having said that, there is little guidance in the case law about how the Court is to go about this investigation. Some courts have evidentiary hearings whereas some use affidavits and motions. It appears that the procedure to be used to assess the admissibility of expert testimony is left to the sound discretion of the Court.

In addition, an expert’s opinion must be based on sufficient facts or data and be the product of reliable principles and methods that are applied reliably to the facts. In assessing the principles and methods, the trial court serves a gatekeeper function to ensure that scientific testimony is both relevant and reliable. The gatekeeper obligation is not limited to scientific testimony but extends to all expert testimony. The question is whether the scientific principles and methods that the expert employed have a reliable foundation in the knowledge and expertise of the expert’s discipline. The goal is to prevent the jury from hearing conjecture dressed up in the guise of an expert opinion. The testimony of the witness must be more than subjective belief or unsupported speculation. Thus, expert testimony may be barred if the only support for the accuracy of the expert’s method is the expert’s own say-so.

The Wisconsin Supreme Court recently addressed reliability prong of the Daubert test in Seifert ex rel. Scoptur v. Balink. A non-exhaustive list of factors to be considered was provided, which included the following: “(1) whether the methodology can and has been tested; (2) whether the technique has been subjected to peer review and publication; (3) the known or potential rate of error of the methodology; and (4) whether the technique has been generally accepted in the proper scientific community.”

The reliability standard requires a preliminary assessment of whether the reasoning or methodology is scientifically valid and depends on principles and methodology, not on the conclusions generated. Assessment of the reliability prong of admissibility is largely fact-dependent. All of the factors suggested above may not apply to the analysis of the reliability of an expert’s opinion, but it is indicative of the level of scrutiny a trial court should apply to the analysis.

Seifert applied Wis. Stat. § 907.02 and Daubert to the admissibility of a medical expert’s opinions in the context of a medical malpractice case. The issue was whether experience-based, nonscientific testimony was admissible. The court held that the adoption of Daubert does not prevent experiencebased, nonscientific testimony because courts have recognized that there are many different kinds of experts and many different kinds of expertise. The factors used to assess reliability may or may not be pertinent depending on the nature of the issue, the expert’s particular expertise, and the subject of his or her testimony. When nonscientific expert testimony is involved, the relevant reliability concerns may focus on personal knowledge and experience. The U.S. Supreme Court has also addressed this issue and required a witness relying on experience to offer some articulated rationale supporting his or her opinion.

An expert opinion based on experience alone or experience in conjunction with other knowledge, skill, training, or education may constitute a reliable basis for admissibility. When an expert offers nonscientific testimony is being offered, the reliability concerns may focus on the expert’s personal knowledge or experience. This ensures that the expert employs the same level of intellectual rigor that characterizes the practice in the expert’s area of expertise. Courts are no longer required to admit opinion evidence that is connected to existing data only by the ipse dixit (because I say so) of the expert. Thus, an expert cannot establish that a fact is generally accepted merely by saying so. The court must look to the nature of the issue, the expertise of the witness, and the subject of the testimony. Reliability is established and the opinion is admissible if it is based on sufficient facts or data, testimony that is the product of reliable principles and methods, and the witness’ application of the principles and methods reliably to the facts of the case. In sum, the standard for reliability after considering the factors is the sound discretion of the court.

Using the Daubert standard, you might first challenge the expert about qualifications and whether his opinions are offered within the field of expertise. This was discussed above. Thus, an expert may be qualified in a particular field, such as engineering or medicine, but unqualified to offer opinions about the standard of care and/or the negligence of a person acting in an unrelated field. The question becomes one of methodology. The first consideration must be whether the expert is qualified. The second consideration is whether the expert’s opinions are relevant. And the third consideration is whether the testimony is reliable. To be admissible, expert testimony must meet the statutory criteria and be based upon sufficient facts or data.

As stated in Seifert, the Court needs to consider whether a methodology was employed that can be tested, whether the technique was subject to peer review and publication, the known rate of error of the methodology, and whether the technique had been generally accepted in the proper scientific community.

Experts may testify on the basis of personal experience or knowledge. But personal experience or knowledge does not make an opinion admissible carte blanche. Applying the Daubert standard to many medical issues is often difficult. The opinions are experience-based. For example, in motor vehicle accidents, a frequently-heard opinion is that the plaintiff did not have the condition before the accident and had it after the accident and, therefore, there is a causal connection. Daubert challenges to opinions of this type have been largely unsuccessful. A reason is that the doctor likely has experience in treating whiplash/extension-flexion injuries of the cervical spine, the patient had no objective signs or symptoms following the accident, the patient was asymptomatic prior to the accident, and then after the accident, the patient had symptoms that likely are permanent because of the time that passes.

In those circumstances, the doctor likely will be allowed to rely on his background, training and experience to offer an opinion that trauma causes injuries, that the science is not sufficiently sensitive to identify the precise etiology, and that microtears of the soft tissues and other changes in the anatomy are a reasonable explanation for the symptoms’ cause. Thus, a Daubert challenge depends on the training, qualifications, and experience of the expert and whether a recognized methodology was used. If a logical and rational methodology has been used, the opinion likely will be admitted. Literature within the field to support the opinion is not a requirement for admissibility. The bottom line to a Daubert challenge is that it depends on the facts and the view of the trial judge. The law on challenging expert testimony on Daubert standards continues to evolve. When opinions are offered that are questionable and without foundation, challenges should be made.

PRESENTING EXPERT TESTIOMONY

An expert’s direct examination is conducted in the manner of any direct examination. Questions are to be posed in a non-leading manner. The purpose of the examination is to qualify the expert in the field in which the opinions are to be granted, and to offer the opinions to the requisite standard. This may be over-simplified. There are a number of techniques that can enhance the presentation of expert testimony. These will be discussed below.

An outline of the subjects to be addressed with the expert witness may include the following:

• Name;

• Profession or occupation;

• Current position or title;

• Educational background and training;

»»Undergraduate degree;

»»Medical school/graduate degree;

»»Subsequent training (residencies, fellowships, etc.);

• Explain the “field of expertise” (medicine, engineering, construction, etc.);

• Nature of practice or work currently being performed;

• Aspects of professional life;

»»Practice/work performed;

»»Consulting;

»»Research;

»»Writing;

»»Teaching;

• Academic appointment/teaching;

»»Nature of the teaching;

»»Subjects taught;

• Contribution to the professional literature;

»»Articles/chapters/books;

»»Editorial board;

• Prior consultation in litigation matters;

»»Frequency;

»»Work for plaintiffs and defendants;

»»Prior work with counsel;

»»Number of cases reviewed;

»»Charges;

• Issues to address/assignment;

• Materials provided;

»»List the materials;

»»Whether these are usually and customarily relied upon to reach opinions to be offered;

• Request agreement that opinions will be expressed to a reasonable certainty or probability within the expert’s field;

»»Issues to be addressed and opinions;

»»Have you prepared a report of your opinions;

»»ID report;

»»Have you reached an opinion on the issue in the case;

––What opinion;

––Express it.

Testimony about the expert’s background, training and experience, although usually considered to be pro forma, is required to show to the Court and the jury that the expert has the background, training and experience to offer opinions. Care should be taken to provide information about the training and experience the expert has to offer the opinions. For example, if an engineer plans to offer opinions about plumbing, a foundation needs to be laid that the expert has sufficient background, training, and experience in both engineering and plumbing. Demonstrating this expertise qualifies the expert to offer an opinion in an area that may be deemed to be outside the expected expertise of an engineer. Another example is the care and treatment of conditions of the spine. This crosses multiple specialties. However, when a decision is made to do surgery, it is usually a neurosurgeon or orthopedic surgeon that decides rather than an internist or physiatrist. Testimony about the expert’s background should be directed to experience and training on the subject matter of the expert’s opinions.

When examining the experts, one needs to have an understanding of the witness’ mindset. It is important to know the terminology being used and to phrase the question appropriately. In dealing with technical matters, the form of the question may determine the answer and if it is not properly phrased, a less than desirable response may be forthcoming. It is also important to know the expert’s mindset so that questions can be phrased in a manner that is understood by the expert. In a recent trial, a particularly well-qualified expert was asked to provide a “Reader’s Digest version” of his curriculum vitae, to which the witness responded, “I do not believe it has ever been published in Reader’s Digest”.

An effective question may be to ask a particularly distinguished witness to identify the honor or award of which the witness is particularly proud. In response to that question, an oncologist said that he was the lead author on an article that was the most cited article in oncology in the previous decade, and added, “When others think your work is important, that’s meaningful.” In addition, an expert who frequently testifies but whose primary business is not consulting in litigation may be asked the reason for participating in the process. Responses such as, “It makes me a better teacher”, “It helps me be a better practitioner”, “I learn what problems to avoid”, or similar answers may be used to deflect the accusation that the expert testifies solely for the money and is a “hired gun”.

Once you’ve established the expert’s qualifications, inquiry should be made about the materials relied upon in forming the opinions. The witness should be asked what records and materials were reviewed and the tasks performed to show how the materials and tasks relate to the opinions expressed. The expert should be asked whether the materials provided are reasonably and customarily relied upon by persons in the witness’ field of expertise in forming opinions of the type to be expressed.

Experts may also be asked to base opinions on hypothetical questions. A witness may be asked to assume certain facts and to express an opinion on them. With a hypothetical question, if the assumed facts fail, the answer or conclusion based on the assumed facts must also fail. The form of the question should be to ask the witness to assume only facts that can be proven. In the event counsel objects to a hypothetical question on the ground that it includes facts that were not proven or is incomplete in form, objecting counsel has the duty to specify why the question is improper. If the objection is sustained, the question should be rephrased to overcome the objection.

Learned treatises, which are writings from the professional literature, may be used to support the opinion of an expert witness. A treatise, periodical, or pamphlet cannot be used on direct examination unless notice of it was provided in writing to opposing counsel at least forty days before trial. The use of learned treatises provides the jury with support for the expert’s opinions and shows that the expert’s views are substantiated in the professional literature and shared by others. The foundation for admissibility of a learned treatise requires that the author or authors of the article, chapter, or book be recognized as experts in the field. It is not sufficient to show that an article is published in a reputable and respected journal. The status of a publication is not sufficient to establish the reliability required for admissibility.

As indicated previously, there is no required phrase to be used in presenting an expert’s opinion. The better approach is to ask the witness to express terms to a reasonable certainty or probability within the expert’s field. While probability and certainty are interchangeable, expressing opinions to a reasonable certainty may be received as being more certain to a juror than an opinion to a probability.

Diagrams, charts and data compilations may be created for convenience of presentation. Summaries of data and calculations are admissible. Wis. Stat. § 910.06 deals with the admissibility of data summaries as follows:

The contents of voluminous writings, recordings or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The judge may order that they be produced in court.

However, the admissibility of the summary is dependent upon the admissibility of the information summarized. The admissibility of a summary will be governed in varying instances by the admissibility of the underlying documents, the first-hand knowledge of the witness of the underlying facts, or the evidence which is summarized. Summaries created from medical records that are before the Court should likewise be admissible.

Importantly, the Court may find it necessary to instruct the jury that the summary itself is not evidence:

You observed the manner and way in which the State proceeded with the use of this exhibit, but it is the evidence that controls, and it is your recollection of the evidence that controls, and you should only rely on any summary to the extent that it’s consistent with your recollection and to the extent that you feel it accurately and properly summarizes or reflects evidence that you have heard in the case.

Before summaries of information are admissible, materials on which the summaries are based must either be in evidence, in court, or available to the opposing party.

Courts frequently require experts to prepare reports of their opinions and provide the reports to the opposing party. The reports may be used as an outline for the presentation of the expert’s opinion. An expert witness may read into evidence any report the expert has written. Wis. Stat. § 907.07 provides as follows:

Reading of report by expert. An expert witness may at the trial read in evidence any report which the witness made or joined in making except matter therein which would not be admissible if offered as oral testimony by the witness. Before its use, a copy of the report shall be provided to the opponent.

Presentation of expert testimony can be greatly enhanced by use of demonstrative evidence, including charts, diagrams, photographs, x-rays, and other materials. Models can also be used to help the witness prescribe the facts and opinions to be better offered. The presentation of expert testimony may also be enhanced by requesting permission to allow the expert to get up and provide demonstrations or testimony near to the jury with the use of a model, x-ray, or other material to allow them to get out of the jury box and display their expertise.

CONCLUSION

There are many, and varying, schools of thought when it comes to expert witnesses. They are expensive, consume a lot of time, and may not be necessary if the lawyer can do a good enough job on cross-examination of the plaintiff’s experts. When experts are necessary, however, you need to make sure that you retain a high-quality expert through one of the reliable sources mentioned in this article. You also need to make sure that your expert can sustain any Daubert challenge which he or she may face by vetting your expert’s qualifications and ability to serve prior to spending a significant amount of money. A well-qualified expert, in the right case, can make all the difference in the world.

Speaker Biographies

Mike Crooks is a Shareholder in the firm’s Litigation and Risk Management Practice Group. He focuses his practice on commercial litigation, legal malpractice and other professional negligence claims, accounting malpractice, insurance defense and coverage issues, bad faith litigation, product liability work, premises liability, breach of contract, personal injury defense and third-party recovery. Mike is also an experienced mediator and is frequently called upon to resolve disputes.

He is recognized in The Best Lawyers in America® and in 2017 was recognized as their “Lawyer of the Year” in Personal Injury Litigation - Defendants. He is recognized by Wisconsin Super Lawyers® as one of the Top 25 Attorneys in Madison and one of the Top 50 Attorneys in Wisconsin. He was awarded an AV Preeminent® Peer Review Rating by Martindale-Hubbell®, the highest rating possible.

Mike is a Fellow of the American College of Trial Lawyers, is recognized as a member of the National Academy of Distinguished Neutrals Wisconsin Chapter (2015) and is a Board-Certified Trial Lawyer (2004). He is the Past President of the American Board of Trial Advocates-Wisconsin Chapter and previously served as President (2005-2006) and on the Board of Directors of the Wisconsin Defense Counsel.

Mike is a frequent lecturer for many organizations including the State Bar of Wisconsin, the Wisconsin Judicial College, the Wisconsin Defense Counsel and the University of Wisconsin Law School.

He is a member of the State Bar of Wisconsin, James E. Doyle Inn of Courts (former Treasurer), the Defense Research Institute and the American Board of Trial Advocates (ABOTA).

William R. Wick, is a defense lawyer who concentrates his practice in the areas of medical malpractice and general personal injury litigation. He received his B.S. in 1970 from Carroll College, his M.P.A. in 1972 from the University of Southern California, and his J.D. in 1974 from Marquette University Law School. Mr. Wick was certified by the American Board of Trial Advocacy as a Civil Trial Specialist. He is a member of the State Bar of Wisconsin and a past chair of the Litigation Section. He has also been President of the Civil Trial Counsel of Wisconsin now known as the Wisconsin Defense Counsel. Mr. Wick is a fellow of the American College of Trial Lawyers and a member. He has also been President of the Wisconsin Chapter of the American Board of Trial Advocates (ABOTA). He has also been selected to be included in Best Lawyers in America for the last twelve years. Mr. Wick is a frequent lecturer on topics involving civil litigation.

References

1 In re Trust of Bowler, 56 Wis. 2d 171, 201 N.W.2d 573 (1972) and Drexler v. All American Life and Casualty Company, 72 Wis. 2d 420, 241 N.W.2d 401 (1976).

2 Cramer v. Theda Clark Memorial Hospital, 45 Wis. 2d 147, 142 N.W.2d 427 (1969).

3 Hamann v. Milwaukee Bridge Co.,127 Wis. 550, 106 N.W.2d 1081 (1906).

4 Valiga v. National Food Co., 58 Wis. 2d 232, 206 N.W.2d 377 (Ct. App. 1973).

5 State v. Swope, 2008 WI App 175, 315 Wis. 2d 120, 762 N.W.2d 725 (Ct. App. 2008).

6 Lee v. Anderson, 617 F.3d 803 (8th Cir. 2010).

7 Green v. Rosenow, 63 Wis. 2d 463, 217 N.W.2d 388 (1974).

8 Karl v. Employers Ins., 28 Wis. 2d 284, 254 N.W. 2d 255 (1997).

9 Diemer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341, 345 (7th Cir. 1995).

10 See e.g., Wis. JI-Civil 1022.4, 1023.6, 1381, 1023.8, 1023, 1023.7, 1023.14 and 1023.5.

11 Enea v. Linn, 256 Wis. 2d 714, 650 N.W.2d 315 (Ct. App. 2002).

12 See State v. Pittman, 174 Wis. 2d 255, 267-68, 496 N.W.2d 74 (1993); State v. Jensen, 147 Wis. 2d 240, 249, 432 N.W.2d 913 (1988); State v. Ross, 203 Wis. 2d 66, 81, 552 N.W.2d 428 (Ct. App. 1996); State v. Bednarz, 179 Wis. 2d 460, 465, 507 N.W.2d 168 (Ct. App. 1993); State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984)

13 Haseltine, 120 Wis.2d at 96.

14 See Kirkman v. Hinz, 138 Wis. 2d 131, 406 N.W.2d 156 (Ct. App. 1987), aff’d in part, rev’d in part, on other grounds, 142 Wis.2d 404, 418 N.W.2d 795 (1988).

15 Garrity v. Welch Plumbing Company, 104 Wis. 2d 414, 430, 312 N.W.2d 37 (1981); Pucci v. Rausch, 51 Wis. 2d 513, 519, 187 N.W.2d 138 (1971).

16 See Hernke v. Northern Ins. Co., 20 Wis. 2d 352, 360, 122 N.W.2d 395 (1963); Milbauer v. Transport Emp. Mut. B. Soc., 56 Wis. 2d 860, 864, 203 N.W.2d 135 (1973); Felde v. Kohnke, 50 Wis. 2d 168, 183, 184 N.W.2d 433 (1977).

17 See Wis. Stat. §§ 802.10 and 904.03.

18 See State ex rel. Dudek, 34 Wis. 2d 559, 150 N.W.2d 387 (1967).

19 Roy v. St. Luke Medical Center, 305 Wis. 2d 658, 669, 741 N.W.2d 256, 262 (Ct. App. 2007).

20 Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).

21 Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

22 See Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 435 (6th Cir. 2007).

23 See Seifert ex rel. Scoptur v. Balink, 2015 WI App 59, 364 Wis. 2d 692, 869 N.W.2d 493.

24 See State v. Giese, 2014 WI App 92, ¶ 20, 356 Wis. 2d 796, 854 N.W.2d 687.

25 Seifert ex rel. Scoptur v. Balink, 2017 WI 2, ¶¶ 50–86, 372 Wis. 2d 526, 888 N.W.2d 816.

26 Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir.1999) (citing Daubert, 509 U.S. at 593–94).

27 See Wis. JI-Civil 265.

28 See Cornell v. State, 104 Wis. 527, 80 N.W.2d 745 (1899).

29 See Wis. Stat. § 908.03(18).

30 See Wis. Stat. § 908.03(18)(a).

31 See Ansani v. Cascade Mountain Inc., 223 Wis. 39, 588 N.W.2d 321 (Ct. App. 1998) and Broadhead v. State Farm Mut. Auto Ins. Co., 217 Wis. 2d 231, 579 N.W.2d 761 (Ct. App. 1998).

32 See Judicial Committee Note to Wis. Stat. § 910.06.

33 See, e.g., State v. Olson, 217 Wis. 2d 730, 743, 579 N.W.2d 802, 807-08 (Ct. App. 1998) (affirming instructing the jury on the use of a summary).

34 See Tri-Motors Sales, Inc. v. Travelers Indemnity Co., 19 Wis.2d 99, 119 N.W.2d 327 (1963) and Wis. Stat. § 910.06.