Properly vetting an expert witness is imperative to ensure that Daubert challenges are not successful in asbestos litigation. Generally, vetting an expert requires understanding and researching the expert’s background, finding discrepancies in credentials, and matching the expert with one’s case. Practitioners in search of expert witnesses in asbestos exposure litigation should utilize the following tips.
1. Ensure the Expert “Fits” With Your Case
When vetting experts, young attorneys must ensure that the expert is the right “fit” for the case. Making sure the expert is the right “fit” requires an in-depth look into the expert’s background. Attorneys should research the expert’s financial matters (i.e., how the expert bills attorneys, rate of pay, etc.) and utilize outside resources or other attorneys who may have retained the expert witness in other cases. For example, membership in organizations such as the American Bar Association offers significant advantages in searching for expert witnesses through searchable databases.
2. Research the Expert’s Background and Prior Testimony
While finding a qualified, experienced, and knowledgeable expert who is free of conflicts is certainly the goal, it is only half the battle. Before making the decision to retain an expert, practitioners must review the expert’s CV and references to confirm that the potential expert is in good standing within their field. This can help avoid an embarrassing or potentially case-damaging situation if the expert’s stated credentials do not match reality.
When deciding whether to admit expert testimony, a judge will consider the expert’s opinions within the framework for admitting or excluding expert testimony within their jurisdiction. When vetting an expert for an asbestos exposure case, practitioners must analyze court records to identify the key reasons for exclusion or admission of the expert’s previous opinions. Daubert/Frye gatekeeping challenges should be monitored across:
- federal and state cases combined;
- jury verdicts and settlements;
- court documents—trial filings, appellate briefs, trial orders, dockets;
- PACER—U.S. federal court documents; and
- Google Scholar—legal opinion search.
Finally, when reviewing an expert’s litigation history, practitioners should note the number of case reviews, depositions, and trial testimonies, as well as an expert’s tendency to work for either plaintiffs or the defense. In some instances, an expert’s litigation experience can also affect how much time initial expert disclosures will take. If the case is pending in federal court, it is helpful to have an expert with federal court experience because the disclosure process is detailed and exact. Additionally, when deciding between seasoned experts or new experts, one is not always better than the other. An expert’s level of courtroom experience can impact the way she is perceived by a jury. Hiring an expert witness with “too much” litigation experience can lead the jury to believe that the expert is a “hired-gun.” On the flip side, new experts can be intimidated during cross-examination and may concede points when pressed, whereas the seasoned expert’s experience may allow them to remain calm and collected during a difficult cross-examination.
It is vital to ensure potential experts have enough relevant education, qualifications, and experience in their field. Many experts require specific licenses to practice in their field, and likewise, should possess a valid and current license when acting as an expert witness. For each expert candidate you are considering, review the status of their relevant certifications, including their expiration dates and certification history.
3. Consult Another Expert Witness
Another way to vet an expert witness to discover if he or she would have the right fit for the case or claim is by contacting and communicating with another expert who has professional knowledge of your potential expert witness. The expert may have more information if the potential witness has peer reviews, works with other experts, and is widely known in the field. The more the other professional works or studies on the subject matter, the more experience others will have with him or her and know about how he or she works.
Although identifying and vetting expert witnesses in asbestos exposure cases seems like a dauting task, it is important to get a head start on the process. Many cases have been lost when an expert witness (whether a plaintiff or defense expert witness) was unprepared to deal with opposing counsel who properly researched the witness. However, by starting the process early and efficiently, practitioners can ultimately avoid a successful Daubert/Frye challenge.