Transcript Judge Silver Pupillage - March 2011

EXPERT WITNESSES AND
RELATED DISCOVERY AND
ETHICAL ISSUES
DISCOVERY ISSUES
FEDERAL RULES
Fed. R. Civ. P. 26(a)(2)
Fed. R. Civ. P. 26(b)(4)
FLORIDA RULES
Fla. R. Civ. P. 1.280(b)(4)
Party must disclose identity of each person that a party
may call @ trial
Party must disclose (upon request in interrogatories)
identify of each person a party expects to call @ trial
Written report must accompany disclosures if (a) witness
is “retained or specially employed to provide expert
testimony” or (b) witness’ duty as a party’s employee
involves regularly giving expert testimony
No written report from the expert is required
Report must contain: (1) opinions + basis, (2) facts or
data considered, (3) summary or supportive exhibits, (4)
qualifications + list of publications in last 10 years, (5)
compensation, (6) list of all cases in past 4 years in which
the expert testified
Disclosures must contain: (1) subject matter of testimony,
(2) substance of facts and opinion, (3) summary of
grounds for opinion.
Party may inquire: (1) scope of employment in pending
case + compensation, (2) gen’l litigation experience +
percent of work for plaintiffs/defendants, (3) identity of
other cases within a reasonable time period in which
expert has testified, (4) approx. of expert’s involvement as
an expert (# of hrs., % of hrs., % of income derived from
expert testimony)
NOT required to disclose: (1) earnings or income from
other sources, (2) financial/business records (absent
unusual/compelling circumstances
All other witnesses who may testify (and don’t qualify as
either (a) or (b) above) must disclose (1) subject matter of
testimony and (2) summary of facts and opinions
Witness specially retained but not expected to testify: (1)
facts/opinions discoverable only upon showing of
exceptional circumstances or (2) as provided in Rule
1.360(b)
Explicit protection for (1) drafts of expert reports and (2)
communication between an attorney and an expert,
except (a) compensation, (b) facts/data considered by the
expert, and (c) assumptions relied upon by the expert
Very limited work product protection for materials provided
to a testifying expert. See Mullins v. Tompkins, 15 So. 3d
798 (1st DCA 2009)
FEDERAL RULES
Fed. R. Civ. P. 26(a)(2)
Fed. R. Civ. P. 26(b)(4)
• Party must disclose identity of each person that a party
may call at trial
• Written report must accompany disclosure if (a) witness
is “retained or specially employed to provide expert
testimony” or (b) witness’s duty as a party’s employee
involves regularly giving expert testimony
• Report must contain: (1) opinions + basis, (2) facts or
data considered, (3) summary or supportive exhibits, (4)
qualifications + list of publications in last 10 years, (5)
compensation, (6) list of all cases in past 4 years in
which the expert testified
FLORIDA RULES
Fla. R. Civ. P. 1.280(b)(4)
• Party must disclose (upon request in interrogatories)
identity of each person a party expects to call at trial
• No written report from the expert is required
• Disclosure must contain (1) subject matter of testimony,
(2) substance of facts and opinion, (3) summary of
grounds for opinion
FEDERAL RULES
Fed. R. Civ. P. 26(a)(2)
Fed. R. Civ. P. 26(b)(4)
• Explicit protection for (1) drafts of expert records and (2)
communication between an attorney and an expert,
except (a) compensation, (b) facts/data considered by
the expert and (c) assumptions relied upon by the expert
FLORIDA RULES
Fla. R. Civ. P. 1.280(b)(4)
• Very limited work product protection for materials
provided to a testifying expert. See Mullins v. Tompkins,
15 So. 3d 798 (1st DCA 2009)
PRIVILEGED MATERIALS PROVIDED TO EXPERT IN
FLORIDA
• Expert never reads them
• Expert reads them but does not rely on them reaching an
opinion
• Expert relies on them in reaching opinion
• Use as evidence or exhibit at trial
FLORIDA RULES
Fla. R. Civ. P. 1.280(b)(4)
• Party may inquire: (1) scope of employment pending
case + compensation, (2) general litigation experience +
percent of work for plaintiffs/defendants, (3) identity of
other cases within a reasonable time period in which
expert has testified, (4) approx. of expert’s involvement
as an expert (# of hrs., % of hrs., % of income derived
from expert testimony)
• NOT required to disclose: (1) earnings or income from
other sources, (2) financial/business records (absent
unusual/compelling circumstances
FLORIDA DISCOVERY REQUESTS
TO KEY ACTOR IN LITIGATION
• Sent to law firm after naming expert
• Copies of billing invoices
• Extent of financial relationship; how much
• Copies of deposition or trial transcripts of testimony
MORGAN, COLLING & GILBERT, P.A. v. POPE, M.D.
• 798 So. 2d 1 (Fla. 2nd DCA 2001)
• Second District Court Appeal held requested documents
discoverable because:
-
Relevant to demonstrate bias
-
Nondisclosure affects truth – seeking function of jury
FLORIDA DISCOVERY REQUESTS TO PARTY
REGARDING RELATIONSHIP TO EXPERT
• Each case testified
Deposition
At trial
• Each case performed analysis, examination, or rendered
opinion
• How much paid
ALLSTATE INSURANCE CO. v. HODGES
• 855 So. 2d 636 (Fla. 2d DCA 2003)
• Second District Court of Appeal again held requested
documents discoverable because:
(1) Requested documents showed extent of financial
relationship between expert and party;
(2) Requested information showed amount of money
paid by party to expert for expert type resources;
(3) Requested information shows bias; and
(4) Limitation on disclosure would affect truth seeking
function of jury
QUALIFICATION OF
EXPERT WITNESSES
OTHER SPECIALIZED KNOWLEDGE
(Video Clip Deleted)
Rules of Evidence - Federal
• Federal Rule of Evidence 104(a) – Questions
of Admissibility Generally
Preliminary questions concerning the qualifications of a
person to be a witness, the existence of a privilege, or
the admissibility of evidence shall be determined by the
court, subject to the provisions of subdivision (b). In
making its determination it is not bound by the rules of
evidence except those with respect to privilege.
Rules of Evidence- Federal
Federal Rule of Evidence 702 - 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, if (1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case
Case Law - Federal
Qualification of Expert Witness
Courts engage in a three part inquiry to determine
the admissibility of expert testimony under Fed. R. Civ. P. 702.
1. The expert is qualified to testify competently regarding the matters he
intends to address;
2. The methodology by which the expert reaches his conclusions is
sufficiently reliable as determined by the sort of inquiry mandated in
Daubert; and
3. The testimony assists the trier of fact, through the application of scientific,
technical, or specialized expertise, to understand the evidence or to
determine a fact in issue.
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.
1998) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (11th
Cir. 1993).
Case Law - Federal
Qualification of Expert Witness
Under Rule 702, a witness may be qualified as an
expert by virtue of his or her knowledge, skill,
experience, training, or education.
Quiet Technology DC-8, Inc. v. Hurel-Dubois UK LTD.,
326 F.3d 1333 (11th Cir. 2003).
Case Law - Federal
• Eleventh Circuit Cases
• Quiet Technology DC-8, Inc. v. Hurel-Dubois UK LTD., 326 F.3d 1333
(11th Cir. 2003) (Witness qualified as an expert in aerodynamics based on his
extensive education, training and experience. Court explained that although the
factors governing admissibility overlap – whether a witness is qualified remains
a distinct factor for consideration.)
• Dracz v. American General Life Ins., 426 F.Supp.2d 1373 (M.D. Ga. 2006),
aff’d, 201 Fed. Appx. 681 (11th Cir. 2006) (District court properly excluded
witness from testifying as a handwriting expert considering lack of certifications
in relevant industry, lack of participation in proficiency testing, and lack of
training in accredited program).
Case Law - Federal
• District Court Cases
•Vision I Homeowners Assoc., Inc. v. Aspen Specialty Ins. Co., 2009 WL
4894322 (S.D. Fla. Dec. 14, 2009) (The qualification standard for expert
testimony is not stringent and so long as the expert is minimally qualified,
objections to the level of the expert’s expertise go to credibility and weight, not
admissibility.)
•Richter v. Home Depot, U.S.A., Inc., 2009 WL 2914256 (M.D. Fla. Aug. 4,
2009) (The expert’s qualifications must relate to the matters he will address in
his testimony. Court held witness qualified to testify as an expert on the
nature of plaintiff’s injuries and theories of causation based on his medical
education and work-related experience. Witness could not testify concerning
design of a saw, its operation or on engineering matters.
Rules of Civil ProcedureFlorida
Florida Rule of Civil Procedure 1.390(a) –Definition
The term “expert witness” as used herein applies
exclusively to a person duly and regularly engaged in the
practice of a profession who holds a professional degree
from a university or college and has had special
professional training and experience, or one possessed
of special knowledge or skill about the subject upon
which called to testify.
Rules of Evidence- Florida
Florida Rule of Evidence 90.702 –Testimony by experts
If scientific, technical, or other specialized knowledge will
assist the trier of fact in understanding the evidence or in
determining a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify about it in the form of an opinion; however, the
opinion is admissible only if it can be applied to evidence at
trial.
Case Law - Florida
•Qualification of Expert Witness
Florida courts engage in a four-prong test to determine
the admissibility of expert testimony under Fla. R. Evid. 90.403:
1. The opinion evidence must be helpful to the trier of fact;
2. The witness must be qualified as an expert;
3. The opinion evidence must be applied to evidence offered at trial; and
4. The evidence, although technically relevant, must not present a
substantial danger of unfair prejudice that out-weighs its probative value.
CSX Transportation, Inc. v. Whittler, 584 So. 2d 579 (Fla. 4th DCA 1991).
Case Law - Florida
•
The trial court has a great deal of discretion in ruling upon the qualifications of
expert witnesses and the propriety of questions expounded. Warning Safety
Lights, Inc. v. Gallor, 346 So. 2d 92 (Fla. 3d DCA 1977).
•
Failure to object to qualification of witness results in waiver of a challenge on
that basis. CSX Transportation, Inc. v. Whittler, 584 So. 2d 579 (Fla. 4th DCA
1991).
•
To qualify as an expert in a given area, it must be shown that the witness
acquired special knowledge of the subject matter either by study or through
experience. Gianos v. Baum, 941 So. 2d 581 (Fla. 4th DCA 2006).
•
If the record does not support a finding that expert is qualified, the case may
be remanded for an evidentiary hearing on the issue. Perdomo v. State, 829
So. 2d 280 (Fla. 3d DCA 2002).
•
Terry v. State, 668 So. 2d 954 (Fla. 1996) – the determination of witness’
qualifications to express an expert opinion is within the discretion of a trial
judge and will not be reversed absent a clear showing of error. See also,
Ramirez v. State, 542 So. 2d 352 (Fla. 1989).
ETHICAL
ISSUES
Deal With the Devil
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The devil offers three men, a doctor, a
bus driver and a legal expert, each a
free pass to heaven as long as they
can answer a simple question.
“What does 1+2 equal?”
Both the doctor and the bus driver
immediately answer “3” and receive a
pass.
The legal expert hears the question
and thinks for a minute. He then
closes all the doors and blinds and
pulls the devil in close.
His answer: “First let’s discuss my fee
and then you can tell me what you
want 1+2 to equal.”
Jackie Chiles
(Video Clip Deleted)
Letters of Protection
• Attorney Jackie Chiles sends Kramer to Dr. Bison, the doctor he has
selected, and Chiles’ assistant follows Chiles instructions to “tell him
it’s for me.” Dr. Bison’s charges are ultimately secured by a “letter of
protection” whereby payment of the doctor’s charges are guaranteed
from the proceeds of Kramer’s lawsuit against Java World.
• Chiles and Kramer ultimately settle the case with Java World
pursuant to a settlement whereby the only consideration provided by
Java World is that Kramer receives “free coffee for life.”
• Can Chiles settle the case without notifying Dr. Bison or paying his
charges?
• Would your answer change if Chiles had settled the case for
$50,000 in attorneys’ fees, zero for costs and “free coffee for life” for
Kramer?
Rules 4-1.15 & 5-1.1(e), Rules
Regulating The Florida Bar
• Rule 4-1.15, Rules Regulating The Florida Bar, which is titled
“Safekeeping Property,” provides that “[a] lawyer shall comply with
The Florida Bar Rules Regulating Trust Accounts.”
• Rule 5-1.1(e), Rules Regulating The Florida Bar, which is titled
“Notice of Receipt of Trust Funds; Delivery; Accounting,” provides
that “Upon receiving funds or other property in which a client or a
third person has an interest, a lawyer shall promptly notify the client
or third person. Except as stated in this rule or otherwise permitted
by law or my agreement with the client, a lawyer shall promptly
deliver to the client or the third person any funds or other property
that the client or third person is entitled to receive and, upon the
request by the client or third person, shall promptly render a full
accounting regarding such property.
The Florida Bar v. Silver
788 So.2d 958 (Fla. 2001)
• Failing to notify health care providers holding letters of protection
that settlement funds had been received warranted a public
reprimand and violated former Rule 4-1.15(b), Rules Regulating The
Florida Bar holding that, even though check was made out directly to
client, the attorney was required to notify medical providers after
issuing letters of protection and medical assignments authorizing the
attorney to pay them.
Expert Fees & Other Witness
Compensation Issues
• Assume that attorney Jackie Chiles wants to retain Java Joe, a
world renowned expert in coffee cup top design defects, to perform
the tests on a sample cup top from Java World for Kramer’s case
and to serve as an expert witness at the trial of the case.
• When discussing his fee structure, Java Joe explains that his
standard fee is a flat fee or ten percent (10%) of the amount
recovered in the case, which ever is greater.
• Can Jackie agree to Java Joe’s fee structure?
Contingency Fees
• Rule 4-3.4 governs
– A lawyer shall not:
– (b) fabricate evidence, counsel or assist a witness to testify
falsely, or offer an inducement to a witness, except a lawyer may
pay a witness reasonable expenses incurred by the witness in
attending or testifying at proceedings; a reasonable,
noncontingent fee for professional services of an expert witness;
and reasonable compensation to reimburse a witness for the
loss of compensation incurred by reason of preparing for,
attending, or testifying at proceedings;
Diamonds are an Expert’s Best Friend
• Greedy and Grabby are heirs to a diamond fortune and
are locked in heated litigation.
• Wanda Witness is a former VP and long time employee
diamond company.
• Greedy hires Wanda to testify to the business practices
of the diamond company in hopes of gaining a larger
share of the estate.
• Greedy and Wanda enter a contract where she can
would receive a flat fee, but could receive bonuses of up
to $1,000,000 depending on the “usefulness” of the
information provided.
– Is this agreement acceptable if she is an expert witness?
– Is this agreement acceptable if she is a fact witness?
The Florida Bar v. Wohl
842 So.2d 811 (Fla. 2003)
• This case involved an agreement providing for “assistance” and
which included compensation of: (1) $25,000 for the first fifty hours
of assistance; (2) a potential “bonus” ranging between $100,000 and
over $1,000,000, depending on “the usefulness of the information
provided,” which would be paid after a “culmination event” by which
the party would have received some relief against the opposition;
and where; (3) additional hours of assistance would be paid at the
rate of $500 per hour over the bonus amount and after the
culmination event.
• The Florida Supreme Court stated that such “provisions go to the
very heart of the evil sought to be avoided by [rule 4-3.4(b) ]: the
temptation of a witness to color his or her testimony” and concluded
that the agreement was “an inducement that went far beyond
reasonable expenses incurred by the witness.”
The Ethics of the Experts
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With so many cases involving expert
testimony, associations of expert
witnesses have formed most of them
focusing on specific types of litigation.
Many of these Associations subscribe
to “Codes of Ethics” for the
participating experts.
However the qualification to become a
certified member is usually just
payment of a due.
There is also no enforcement
mechanism for violations of these
codes.
The ABA has found that the ethical
rules governing professional
organizations and specialties are not
sufficient to curb unreliable expert
testimony in favor of one party.