Trial Magazine

No matter how well your liability expert testifies at a deposition, the defense invariably files a Daubert motion, replete with accusations that the expert’s testimony is unreliable. To help defuse these attacks, emphasize these four points when preparing experts.

Defend your opinions. Experts should, above all else, know their report, including all references and citations. Explain that the deposition is the time to provide the evidentiary support to substantiate their opinions—not to engage in an intellectual debate with defense counsel. To that end, I routinely ask my liability experts to create and bring to the deposition a bullet point outline of their report identifying all deviations from the standard of care and how those deviations caused a harm. This applies to many types of cases, including medical negligence, and pharmaceutical and medical device liability experts who give opinion testimony on whether companies complied with standards of care.

Having your experts prepare the outline shortly before the deposition helps them focus on the core aspects of their testimony. The defense will mark the outline as an exhibit, but I’ve never lost a case because the expert wrote an outline that accurately reflected the opinions in the report; I have lost cases after experts forgot to identify and defend their opinions in depositions.

Understand critical concepts and terms. Explain legal terms to the expert, and review how the expert’s opinion relates to the cause of action’s elements. Experts must understand that, with respect to their opinions, every negligent act must cause a harm. In the expert’s bulleted outline, every breach of a prevailing standard of care (whether informed by statutes, codes, regulations, guidance, or what reasonably prudent companies do under similar circumstances) must be linked to a causally related harm.

Discuss the meaning of phrases such as “reasonable degree of scientific certainty or probability” or “more likely than not.” Identify potential questions posed by defense counsel that have the words “possible,” “theory,” “hypothesis,” “speculation,” or “guess.” These are danger words that reflect a question that must be answered with appropriate rebuttal.

Define the method. Defense lawyers invariably argue that the expert’s testimony amounted to no more than unproven conclusions, the “ipse dixit”—“because I said so.”¹ To help defeat allegations that the expert has offered unproven statements, I ask experts to identify in their bulleted outlines the steps they took that support their reasoning. Those methods must reflect the procedures they used in their professional capacity (for example, when they worked at the FDA or within the industry) to arrive at their conclusions.² Such methods might include reviewing regulations, codes, and guidance; reviewing supporting documentation, including internal company documents and witness statements; analyzing adverse event reports; critiquing advertising materials; consulting the professional opinions of others; or reviewing and contributing to the scientific literature.

Avoid ‘intent’ minefields. The defense will argue that an expert may not testify to the defendant’s intent,³ so prepare your expert to focus on the defendant’s conduct and whether that conduct deviated from standards of care. The testimony should reflect whether the company’s conduct was appropriate and the consequences of that conduct. The expert can testify, for example, that the company’s conduct resulted in physicians being unaware of adverse events: whether that was the intent of the company is for the jury to determine, not the expert.

Similarly, defendants will argue that an expert’s efforts to show that the defendant withheld information from a regulatory agency is impermissible opinion testimony.⁴ The expert can testify that information may not have been produced to the FDA but should avoid talking about an intent to deceive the agency. Again, the expert should focus on the conduct and whether it complied with standards of care and what effect the failure to produce the material may have had on the product’s FDA approval.

Robert K. Jenner is the founder of Jenner Law in Baltimore. He can be reached at rjenner@jennerlawfirm.com.

Notes

1. The U.S. Supreme Court has recognized the problem of opinion evidence “connected to existing data only by the ipse dixit of an expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 137, 152 (1997); see also Burrow v. Arce, 997 S.W. 2d 229, 235 (Tex. 1999).
2. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (the expert should conduct courtroom analyses under the same standards for “intellectual rigor” that generally prevail in the expert’s field).
3. See In re Heparin Prod. Liab. Litig., 2011 WL 1059660, at *7–8 (N.D. Ohio Mar. 21, 2011); In re Rezulin Prod. Liab Litig., 309 F. Supp. 2d 531, 545–47 (S.D.N.Y. 2004).
4. This argument is based on a misapplication of Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001); see also In re Incretin-Based Therapies Prod. Liab. Litig., 721 Fed. App’x 580 (9th Cir. 2017).