CHAPTERS

Cross-Examination of Expert in Emplojonent Cases

STEVE BRISCHETTO Multnomah County Circuit , Portland SHARON A. RUDNICK Harrang Long Gary Rudnick, PC, Portland Chapter 5

CROSS -EXAMINATION OF EXPERT WITNESSES IN EMPLOYMENT CASES

Stephen L. Brischetto Sharon A. Rudnick

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I. BEFORE THEEXPERT TAKES THE STAND 5-1 r»l II. CROSS-EXAMINATION OF THEEXPERT 5-4

5-i NOTES

5-u Chapter 5

CROSS-EXAMINATION OF EXPERT WITNESSES IN EMPLOYMENT CASES

Stephen L. Brischetto Sharon A. Rudnick

I. BEFORE THE TAKES THE STAND A. Access to ExpertReports and Opinions 1. In federal court, the information thatyougetpre-trial depends upon what kind of expert is going to testify. If the witness is going to givean opinion under PRE702, 703 or705, theopposing party hasanobligation to"disclose theidentity" atthetime set in the court's trial management order. FRCP26(a)(2)(A). If the witness is one who is "retained or specially employed to provide expert in the case or whose duties asanemployee oftheparty regularly involve giving expert testimony," theopposing party has anobligation toproduce a written report prepared and signed bythewitness containing a complete statement ofallopinions to beexpress andthe basis and reasons therefor; the data orother information considered bythewitness; any exhibits to beused as a summary or support forthe opinions; thequalifications of thewitness, including a listof all publications authored bythe witness in the last 10years; the compensation the expert willbe paidfor the study andtestimony; and a listing ofothercases inwhich thewitness hastestified inthelastfouryears. PRC? 25(a)(2)(B). Ifanexpert is"identified" priortotrialbutnowritten report isprovided, it tells you either that the expert is one who developed their opinion outside the litigation process (i.e., a treating physician for example) or thattheopposing party isn't complying with the rules. a. Makea conscious choice of when expertdisclosures will takeplace. Under the court's regulartrialmanagement schedule issuedat the beginning of the case, expert disclosures need to occur within 120 days after the case iffiled. At the initial Rule 16 conference the federal judges routinely alter this timeline if theparties arein agreement. Inanycasewhere notimeforexpert disclosure is set, PRC? 26(a)(2)(C) sets a default time of 90 days prior to trial. If the case is one which is likely to turn depending upon conflicting expert opinions,youmaywantto adhereto expertdisclosureveryearlyin the case. Ifthecaseisnotonelikely toturnupon conflicting expertopinions, you may want to set expert disclosure sometime after dispositive motions (to see how the case has changed after summary judgment)or closerto the default timeline imder the rules. b. Expert depositions: The federal rules permit depositions of experts. PRC? 26(b)(4)(A). However, requests to depose experts pre-trial are routinely denied unless the written expert disclosures are not sufficiently detailed to comply with the rules.

5-1 2. In state court, unless the expert is one whose opinion is developed through an ORCP 44 physical or mental exam, your first notice ofan opposing expert will be during voir dire whenjurors are askedwhether they know a party's witnesses. In state court, you will want to consider an OEC 104 hearing ifthere are issues about admissibility of the opinions, asking to review the expert's file which forms the basis of the expert's opinion and a recess or deferring cross-examination until you have an opportunity to review the file, B, Whether in State or Federal Court, Evaluate the Opposing Expert's Testimony or Written Report and Identify the Weaknesses in the Expert's Opinions 1. Develop a strategy that uses the weaknesses in the expert's opinion and that fits best with the facts ofyour case. There is no limit to the strategies that can be used with expert witnesses. However, some common strategies you will see used are: • The hired gun: an expert whose opinions are bought and sold by the highest bidder • The careless expert: an expert whose work is flawed by mistakes • The uninformed expert: an expert who doesn't have all the facts or hasn't performed the right tests and thus reaches inaccurate conclusions • The biased expert: an expert who has a professional bias and applies that bias to reach conclusions which either aren't supported by the current state of science or by the facts ofthe case • The misled expert: an expert who relies upon facts which are untrue 2. Onceyou'veidentifiedthe weaknessesin the expert's testimonyorreport and chosen a strategy for responding to the expert testimony consider the tools that you have available to implement your strategy. The tools available to you are: (1) a Daubert or OEC 104 hearing to limit or exclude testimony; (2) cross-examining the expert; (3) using your own expert on rebuttal. C. In Limine Hearings to Challenge the Admissibility ofExpert Testimony 1. For expert testimony to be admissible, the subject matter at issue must be beyond the common knowledge of the average lay person, the witness must have sufficient expertise and the state ofthe pertinent art or scientific knowledge must permit the assertion ofa reasonable opinion. U.S. v. Findley, 301 F3d 1000 (9th Cir 2002). 2. For expert testimony to be admissible, the trial court must determine that the reasoning or methodology (not the conclusions they generate) is scientifically valid and that it will assist the trier offact to understand or determine a fact in issue (that is, that the reasoningand methodologyproperly can be appliedto the facts at issue). Daubert V. Merrill DowPharmaceuticals, Inc., 509 US 579,591-92 (1993). In other words, an expert's testimony must amount to "scientific knowledge" to be admissible. According to the Court, "scientific" implies grounding in the methods and procedures ofscience, and "knowledge" means "more than subjective beliefor unsupported speculation." Id. at 589-90.

5-2 3. For expert's testifying about economic loss, mathematical exactness isnotrequired for ofeconomic expert testimony. The expert's assumptions must bebased upon adequate factual in the record. Elcock v. KMART Corp, 233 F3d 734,755 (3d Cir2000). Expert opinion oneconomic damages maybe excluded when the opinion is based upon speculation or is notbased upon in the record. Lithuanian Commerce Corp v. Sara Lee^ 179 FRD 450,460 (DNJ 1998). 4. Anexpert's diagnosis ofmental injury isadmissible ifitfalls within therange where reasonable experts differ and thejurymust decide conflicting views. S.M. v. J.K., 262 F3d 914 (9th Cir 2001). 5. For expert testimony about emotional distress tobe admissible, the proffering party must come forward with "other objective, verifiable evidence thatdietestimony is basedon *scientifically validprinciples.' Daubert v. MerrillDowPharmaceuticals, Inc,43 F3d1311,1317-18 (9th Cir1995) (onremand). One means ofshowing this, according tothe9thCircuit, is byproofthattheresearch or analysis supporting the proffered conclusions has been subject to normal scientific scrutiny through peer review and publication, /rf. at1318. Absent prior research orpeer review, theexperts "must explain precisely how they went about reaching their conclusions andpoint to some objective source-a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like-to show that they have followed the scientific method, as it is practiced by (at least) a recognized minority ofscientists in their field." Id. at 1319. a. Some questions to ask: • Does the expert possess sufficient education and training such that their opinions will carrya measure ofscientific reliability? • Additionally, does the expert have sufficient personal clinical experience in the diagnosis of patients with the type ofconditionat issue? • Aretheexpert'smethodologies basedongenerally acceptedscientific methods and standard clinical and diagnosticprotocols and reliable fortheinvestigative purposes theplaintiffnowseeksto usethem(i.e. treatment provider vs. evaluator)? • Did the expertconducta differential diagnosis to look for alternative causes? 6. Trialcourtmustapply a Daubert-\\k& analysis to technical and othernon-scientific expertopinionsas well to determine their admissibility. Kumho Tire v. Carmichael, 526US 137(1999); FRE 702,Advisory Committee'sNote. For example, inAdams V. AmeritechServices,231 F3d414 (7th Cir 2000),a sex discriminationcase,the 7th Circuit heldthatthetrial court should have admitted theplaintiffs expert testimony on statistical evidence of disparate treatment and a pattern or practice of discrimination, determining under a Daubert-\ikQ analysis thatthe testimony was bothrelevant andreliable. Conversely, inLangv. Kohl'sFoodStores, Inc., 217 F3d 919(7thCir2000), theplaintiffalleged sexdiscrimination basedonthefactthatpay

5-3 in the defendant's produce department was higher than in its bakery and deli departments, and workers were not distributed uniformly by sex. Plaintiff offered expert testimony by a consultant with a PhD in labor relations and economics. The expert's report consisted ofajob evaluation systemsupportingthe plaintiffs position that bakery and deli duties require as much skill as produce duties. The report, however, did not explain how the job evaluation system worked; reliable scientific methodologies were not used to construct the report. The court excluded the testimony, finding that the report contained "unreasoned assertions." Id. at 923-24. 7. Carefully review expert's testimony ofreport to see ifexpert is giving an opinion about credibility. a. Character for truthfulness is only admissible through opinion evidence ofa witness' credibility. U.S. v. Awkward,597F2d 667,671 (9th Cir 1979).Thus, an expert's opinion that a witness is untruthful is inadmissible. U.S. v. Barnard, 490 F2d 907,912 (9th Cir 1978).In addition, expert testimony may not "buttress" or "vouch" for the credibility ofa witness. U.S. v. Binder, 769 F2d 595,602 (9th Cir 1985). b. While an expert may not offer a direct opinion on a witness' credibility or indirectly buttress or vouch for a witness' credibility, an expert may offer an opinion on an issue the jury needs to know to make its own assessment of credibility. ^.5. vThy/or,239F3d994,998(9thCir2001); US vRauth,99'i F3d 1405 (9th Cir 1993). n. CROSS-EXAMINATION OF THE EXPERT A. The strategy that you have and the tools you select will dictate to a great degree how the cross-examination is conducted. B. First - do no harm. In most employment cases, the underlying facts in the case (i.e., the clarity ofthe evidence ofa bad motive, the desirability or undesirability ofboth parties, and the nature ofthe conduct) will be the central focus in the case. Many experts in employment cases are offered primarily to assure the sufficiency ofthe evidence on appeal rather than to persuade thejurors who should prevail. Inmost cases,keep your cross-examinationbriefand confined to implementing your strategy. Your expert will generally know their field better than you. An extended cross-examination of an expert gives the expert opportunities to repeat, reinforce and provide more detail to support their opinion. C. Gather as much information about the opposing expert as possible. Check the expert's web-site for contradictory publications. D. Ifthere is a need to directly take on the opposing expert, you likely need a rebuttal expert. Ifthe opposingexpert's scienceis shaky,yourrebuttalexpertmaybe able to identifylearned treatises which can be used to cross-examine. Statements in a learned treatise may be used to impeach an expert but cannot be introduced in substantive evidence. A learned treatise needs to be established as a reliable authority. This can be done by an admission ofthe witness, by other expert testimony or through . FRE 803(18); OEC 706. E. Areas to explore for possible cross-examination:

5-4 Education and training; Does the expert have sufficient education and training regarding the subject ofhis/her testimony? Clinical experience: Does the expert have significantpersonal clinical experience regarding the subject ofhis/her testimony? Principles and methods: Has the expert actually followed generally accepted protocols and principles in reaching his/her conclusions? Accuracyofunderlyingfactsand assumptions: Whatfacts and assumptionsformthe basis ofthe expert's opinion? Are they accurate?Are they complete? Bias or subjectivity: Can you attach the expert's subjectivity or bias? Conflicting opinions or publications: Can you impeach the expert with conflicting opinions, testimonyor publications? History of providing expert testimonyfor the particular lawyer involved, etc.?

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