Trial Magazine

Whether you’re alleging insurance bad faith, a construction defect, or some type of negligence, the defense engineer expert’s deposition is crucial to your client’s case. You can size up the expert and gauge his or her potential responses to questioning at trial—allowing you to assess credibility and build the foundation for a potential Daubert motion. It also gives you invaluable insight into the technicalities of the case.

The Expert’s Background

Long before the deposition, thoroughly investigate the defense expert’s background, which varies based on whether the person is a civil, electrical, or mechanical engineer. In addition to comprehensive online searches, you can also review

• LinkedIn, Facebook, and other social media sites
• the defense engineer expert’s employer website
• authored publications (Google Scholar and legal databases can be helpful to locate these.)
• databases and list servers (AAJ and state bar list servers can be great resources.)
• other attorneys who may have deposed the expert.

For example, engineering firm websites often include engineer biographical information and curricula vitae, which may differ from what defense counsel provided to you. From firm websites, I have learned that the defense engineer expert specialized in a wholly different area from what our case involved.

Perhaps the biggest treasure you can unearth is a prior Daubert challenge. Conduct a search using the engineer expert’s name in a legal database to locate previous cases when the expert’s opinions were challenged. There is no simpler way to discredit experts than to question them about a similar case in which their opinions were excluded for being unreliable.

Look for Bias

Dig into the defense engineer expert’s relationships with the defendant and defense counsel to uncover any bias. In my online searches, I’ve uncovered engineering firm websites proudly stating that they cater to insurance carriers and other large corporations.

To root out bias, ask the expert the following:

• What percentage of your work is with the particular defense firm in this case?
• What were you paid for work on this case?
• How much do you receive annually from work on cases from this particular defense firm?
• How were you selected for this case? (For example, some insurance carriers have “preferred” engineering firms they retain repeatedly.)
• How often is your firm retained by plaintiffs?

In one deposition, the engineer admitted that 90% of his work was on behalf of defendants. Even if the engineering firm claims to have been retained by plaintiff lawyers in other litigation, ask whether the plaintiff was an insurance company asserting a subrogation claim. This may put the expert’s claim of working for both plaintiffs and defendants in an entirely different light.

Build a Daubert Challenge

Daubert v. Merrell Dow Pharmaceuticals, Inc.¹ requires the court to act as a gatekeeper and admit only expert opinions that are based on sufficiently reliable methodologies. The court evaluates whether the expert’s methodology can be tested or peer reviewed, the known potential error rate for the methodology, any control or maintenance standards of the methodology, and the degree to which the methodology is generally accepted within the relevant scientific community. So direct most of your questioning to elicit responses that might later assist you in excluding the engineer on a Daubert motion.

The expert’s investigation. Here are some basic questions you can ask about the expert’s investigation to set up a Daubert challenge:

• What was the scope of defense counsel’s assignment to you?
• What communications did you have with defense counsel?
• What documents did defense counsel provide to you?
• Was defense counsel involved in helping to draft your report?
• Were there any restrictions or limitations placed on your assignment?

From this line of questioning, you might uncover that an engineer expert was instructed to evaluate only the damage to the roof of the building at issue in your case, rather than all of the damage that the building sustained. Uncovering that the engineer expert’s investigation was limited in scope or inadequate supports the argument that the expert’s opinions were not based on reliable methodologies.

Next, dig into how the engineer expert conducted the investigation. Inquire about the following:

• How long after the damage occurred did you perform the site inspection?
• How long were you on-site during the inspection? (Billing records and front desk sign-in sheets can be valuable here.)
• Did you take any measurements or collect any empirical data?
• Did you write down any notes or take any photographs? (If yes, did the expert bring them to the deposition? Ensure a copy was provided to defense counsel and disclosed to your office.)

Methodologies. Ask whether the engineer expert used accepted methodologies to evaluate the collected data and arrive at stated opinions and conclusions. Also inquire about whether the expert’s methodology is customary or generally accepted within his or her field. For example, in a property damage case, some questions could include:

• Is it a generally accepted practice not to take a single measurement during an on-site investigation?
• Is it customary for geotechnical engineers to take samples of the soil to demonstrate earth movement?

Analytical gaps. Focus on how the engineer arrived at his or her opinions and conclusions. Aim to establish an analytical gap between the expert’s opinion and the methodology used. Essentially, does the methodology the engineer expert used support the ultimate conclusions? Perhaps the engineer expert concluded that the damage to your client’s building was due to wear and tear or earth movement (which is typically excluded from coverage under an insurance policy) but failed to take any measurements or test any samples to rule out alternative causes that would not preclude insurance coverage.

Concessions. After you have covered the scope of the expert’s work, how the expert conducted the investigation, what methodology was used, and how the expert put his or her opinions together, aim to get as many concessions as possible. Ask:

• Did you consider the plaintiff engineer expert’s report when forming your opinions?
• Are there any commonalities or common data points between your report and the plaintiff engineer expert’s report?
• Is there anything in your report that you would like to revise or revisit?
• Did you abandon any approaches? (For example, did the engineer expert pursue one theory but then change course?)
• Is any additional research required?
• What is the scope of your opinion, and what are you not opining on?

Following these tips could go a long way to discrediting unreliable defense experts.

Courtney Abrams is an attorney at Merlin Law Group in Phoenix and can be reached at cabrams@merlinlawgroup.com.

Note

1. 509 U.S. 579 (1993).