November 30, 2017 Articles

What to Expect When You’re Expecting a Drug or Device Expert Deposition

Eleven quick tips for setting up for trial

By Tarifa B. Laddon and Blake A. Angelino

Expert witness depositions in drug and device cases provide critical evidence necessary to ensure a trial victory. That is not a secret. Many drug and device cases live and die on the quality and credibility of the expert testimony. A plaintiff’s entire case, and the defense thereto, depends on the testimony of doctors, engineers, or toxicologists, among many other disciplines. Seasoned drug and device lawyers should expect a number of things before going into expert depositions.

Medical drug and device lawyers should expect the following things out of an expert witness deposition.

Expect an expert. Attorneys need to expect an expert. Expect the opposing party to put forth a qualified, competent, and prepared expert. Experienced lawyers expect the expert to know the allegations, the facts about the plaintiff’s case, the legal theories, and the requisite elements needed to prevail on a claim. A trial lawyer benefits himself or herself by overestimating the opponent.

Expect the fight. Lawyers have trouble with “the fight.” Lawyers fight and lawyers argue. Many lawyers consider it part of the job and encourage the battle. But you will be talking to an expert. You will need to get down “in the weeds” and actually know the science. But you very likely do not have the experience and education in the disciplines in which your opposing expert specializes. Know your limitations. The seasoned attorney uses his or her own expert witnesses to prepare so he or she knows which areas of an opinion to challenge without accidently bolstering the other party’s case.

Expect jurisdictional differences. You know every jurisdiction is unique and nuanced to some degree. The vigilance with which courts enforce their rules on expert opinions will vary by jurisdiction. For example, in Illinois, Rule 213 requires advance disclosure of all opinions an expert witness will give upon request. In practice, the rule does not quite function to require strict compliance. Judges interpret the rule much more loosely and look to the “spirit” of the rule. Rule 26 of the Federal Rules of Civil Procedure requires each expert to prepare an expert report that contains a “complete statement” of the expert’s opinions. Rule 26 also requires the report to contain the facts or data considered by the expert in forming those opinions. Again, in practice, certain jurisdictions may not enforce the standard so rigidly. In Oregon, the “wild west” attitude reigns supreme and rules permit “trial by ambush.” The rules do not require lawyers to disclose the name, qualifications, or opinions of their expert until trial.

Expect some wishy-washy answers. As a follow-up to “the fight,” expect an expert to give you wishy-washy answers unless you pin the expert down. The expert’s wishy-washy answers do not always hurt your case. For example, in attacking the methodology an expert used to come to a conclusion, consider whether repeated wishy-washy answers may actually hurt the expert’s opinion and weaken his or her credibility. In any event, expect evasive answers and prepare to pin the expert down to meaningful answers.

Expect a relatively closed universe. The expert ostensibly relied on or consulted a particular body of knowledge. A well-prepared drug and device lawyer must identify the universe of knowledge and define it. Seasoned lawyers ensure they have been given all of the information the expert used because they cannot hold an expert to an opinion otherwise. Guarantee the expert has told you all of the information the expert has used. You can cut off a potential “route of escape” for the expert later in your deposition and make it more difficult for the expert to squabble with you by ensuring that the expert has testified thoroughly as to the basis for his or her opinions. For example, once you have a complete list of resources the expert relied on, you know the potential criticisms to the methods used therein, and you know whether other methods are more widely accepted. The experts you encounter have finite qualifications, have consulted a finite number of treatises, and have based their opinion on a limited amount of facts and data. Once you define that scope, your mission to poke holes in the expert’s work becomes easier.

Expect the degree to which the expert needs to opine. Is your expert a doctor? The expert must provide an opinion to a reasonable degree of medical certainty. You should confront an expert with the applicable standard here and ensure that the expert’s opinions are in compliance with it. If you later learn the expert has in fact offered a fringe opinion, the groundwork you laid previously will become useful for cross-examination and impeachment.

Expect the expert not to have considered everything. Experienced drug and device lawyers take into account what the expert did and did not rely on. They expect to challenge the expert on what he or she failed to consider because there are always things the expert has failed to consider. As a corollary, lawyers expect the expert report to “short-change” them on information and expect the report will not be sufficiently detailed. So lawyers combat this by setting up challenges to the expert by developing the information, or lack thereof, in their deposition.

Expect what comes after the deposition: Daubert, cross-examination, and impeachment. In the deposition, lawyers develop their Daubert (or applicable standard) motion, cross-examination at trial, and ability to impeach the expert, if needed, to keep the expert honest. Daubert, for example, requires lawyers to submit expert testimony that will help the trier of fact to understand the evidence or to determine a fact in issue, that is based on sufficient facts or data, and that is the product of reliable principles and methods, and to ensure the expert has reliably applied the principles and methods to the facts of the case. Keep this standard in mind when preparing areas of testimony at the deposition.

Expect which concessions the expert is likely to make. The expert made conclusions. In fact, opposing counsel paid the expert for exactly those conclusions. As you test the expert’s opinions, he or she will make inevitable related concessions. A well-prepared drug and device lawyer should expect to exploit those areas with which the expert cannot disagree. Some concessions are inevitable. Some of the expert’s own conclusions may even help your case.

Expect the expert’s limitations. Is the expert an engineer? If so, the expert’s medical opinions are likely out of the question. Is the expert active in the field or has it been decades since he or she has worked, published in relevant journals, or spoken? Has the expert ever worked with the device, or class of device, at issue? It will be important to confine the expert to his or her own field. The expert’s historical and practical expertise may be completely different from the one at issue in the case.

Expect your (and the opponent’s) own weaknesses. Your case isn’t perfect, as no case is. The pro deposer identifies and understands the weaknesses in his or her case and does the same to the opposing party’s case. The weaknesses the lawyer identifies in advance of the deposition will feed into the lawyer’s challenges to the expert’s opinions. At trial, the seasoned lawyer turns the weaknesses exposed in the deposition into damage (and fun) on cross-examination and impeachment.

You should walk into the deposition with expectations. Preparation, as always, will allow you to turn expectations into exploitable weaknesses. Trial attorneys should consider the best route to a devastating cross-examination to be a well-taken deposition.

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