Attempting to Exclude Expert Testimony

Attempting to Exclude Expert Testimony

Because the use of expert witnesses at trial is increasing, it comes as no surprise that attempts to exclude expert testimony are also increasing.

The first and most common is a motion in limine, often made before the trial or before the expert witness testifies. In a motion to the court, the attorney attempts to make a clear and convincing argument that the witness is unqualified to render his or her opinion. The second approach, often combined with the motion in limine, is to move for a voir dire examination of the expert.

Voir dire is a legal phrase referring to an oath to tell the truth (Latin verum dicere), i.e., to say what is true, what is objectively accurate or subjectively honest, or both. A voir dire examination is really a diminutive cross-examination in an attempt by the opposing counsel to expose an expert’s lack of qualifications on the area about which the expert intends to offer opinion testimony. In other words, a voir dire examination allows the opposing attorney to interrupt the direct examination and conduct, in part, his cross-examination.

The right to conduct voir dire examination is at the discretion of the court and may be accepted or rejected. It is important to note that the voir dire examination is very limited in its range. Questioning must be only about the expert’s lack of qualifications to render a meaningful opinion to the trier(s) of fact. Following voir dire, the attorney may make a motion to disqualify the witness from testifying due to inadequate qualifications in the field in which the expert claims to be qualified.

Attorneys facing a strong expert may use one or both methods in a tactical attempt to get the expert’s testimony and/or report excluded before trial even begins. For instance, during deposition of the expert, the opposing counsel can evaluate the strength, demeanor, and charisma of the expert. Equally important, the opposing attorney will examine in detail the expert’s report. When the expert’s report is professional, organized and accurate, and includes the necessary components such as the expert’s CV, list of cases, index, list of documents received and reviewed, discovery exhibits and demonstrative evidence and forms a strong, clear and supported opinion and conclusion, the opposing counsel knows he or she is facing an uphill battle in court.

In defense of both the motion in limine and voir dire examination rules, the intent is to ensure the expert is qualified to opine in the area of expertise in which she claims to be experienced and qualified. After all, the purpose of the expert is to educate the trier(s) of fact -- the jury or the judge -- based on the expert’s experience, certifications and education

As a hypothetical example of how such motions work, an expert was retained to opine on the condition of an outdoor concrete floor that allegedly was spalling and breaking up, causing an individual to fall and be injured. The expert wanted to take samples of the concrete so it could be scientifically analyzed. The opposing attorney made a motion to the court to prevent the taking of samples of the concrete. The court granted the motion and the expert was prohibited from taking samples to be scientifically analyzed.

The expert reverted to a photographic video and simplistic testing by light sweeping of the concrete on site to show that the pebbles, concrete, dust and other particles would easily become dislodged.

The opposing attorney later filed a motion in limine to exclude the expert’s report based in part on an assertion that the expert did not provide any scientific basis for his opinion and/or conclusion.

In this example, the attorney was successful, preventing the expert from performing scientific testing and providing the respective results. Then, after the expert was resourceful in providing other forms of testing to reveal the condition of the concrete, the attorney attempted to again exclude the expert’s report because there was no scientific evidence. As absurd as this seems to people outside the legal system, in this case the attorney used the rules to his advantage in an attempt to get a strong, resourceful expert’s report excluded.

As shown, these rules can be used to eliminate even strong experts from testifying in court and/or from having their reports being entered into evidence. It needs to be noted that in my experience this strategy is often unsuccessful and the qualifications and report of strong experts will prevail.

By WIlliam Gulya Siteworkexpert LLC