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Defense Research Institute

The Difficult Expert Witnesses

The Difficult Expert Witnesses 

By

John C.S. Pierce

John C.S. Pierce is a partner with the Mobile, Alabama office of Butler Pappas. He devotes his practice to litigation and appeals primarily in the areas of construction, heavy equipment, trucking, transportation, products liability, environmental, employment, business litigation, drug and medical device litigation and direct-action insurance matters. He is admitted before all state and federal courts in Alabama, the United States Court of Appeals for the Eleventh Circuit and the United States Supreme Court. He has trial, mediation and arbitration experience in cases throughout Alabama, Mississippi and in the Florida Panhandle. He is a member of The International Association of Defense Counsel, The Defense Research Institute, the Product Liability Advisory Council, the American Bar Association, the Alabama State Bar, the Alabama Defense Lawyers Association and the Mobile County Bar Association. He is a frequent moderator and presenter at CLE seminars around the country.

EXPERT:

One who is knowledgeable in a specialized field, that knowledge being obtained from either education or personal experience. . . One who by reason of education or special experience has knowledge respecting a subject matter about which persons having no particular training are incapable of forming an accurate opinion or making a correct deduction. . . One who by habits of life and business has peculiar skill in forming opinion on the subject in dispute. Black's Law Dictionary, 6th Ed.

The term "Expert" has been defined in many ways. To Mark Twain, an expert was, "an ordinary fellow from another town," while Will Rogers described an expert as "a man 50 miles from home with a briefcase." Physicist Neils Bohr defined an expert as "a person that has made every possible mistake within his or her field." For a trial lawyer, these ordinary out-of-towners can pose a unique challenge, especially when dealing with one who considers himself to be infallible. It is often this expert who makes every mistake within his field, and it is the task of the attorney to either expose these weaknesses or rehabilitate credibility.

The Interplay Between Reliability and Credibility

Lawyers and the courts have long focused on the concept of reliability when evaluating experts. Indeed, much recent Court analysis on how to tighten the reins on expert testimony seems to deal exclusively with this issue. In General Electric v. Joiner, 522 U.S. 136 (1997) the Supreme Court acknowledged that the assessment of expert reliability is for the trial court's considerable discretion, and that determination will not be reversed absent an abuse of discretion. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1999) confirmed the trial court as a "gatekeeper," tasking it and counsel with the role of assessing witness reliability before the jury may consider such testimony. Kuhmo Tire v. Carmichael, 526 U.S. 137 (1999) expanded the scope of the Daubert analysis not only to scientific testimony, but to non-scientific expert testimony, requiring the same level of intellectual rigor, stating:

We do not believe that Rule 702 creates a schematism that segregates expertise by type while mapping certain kinds of questions to certain kinds of experts. Life and the legal cases that it generates are too complex to warrant so definitive a match.

To say this is not to deny the importance of Daubert's gatekeeping requirement. The objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Nor do we deny that, as stated in Daubert, the particular questions that it mentioned will often be appropriate for use in determining the reliability of challenged expert testimony. Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

However, as useful as this guidance is for attacking or reinforcing threshold admissibility, reliability is but one factor in evaluating the effectiveness of expert testimony. Credibility is the lodestar of this analysis, with the concepts of reliability and believability as key factors in the overall credibility analysis.

Ultimately, the judge and jury will assess the issue of credibility, by determining at the outset whether the testimony is admissible by being reliable, and then what weight to afford the testimony by determining whether the expert is believable. Credibility, thus, is not exclusively determined by reliability, but by a host of additional factors that counsel must consider during trial. It is the different manifestations of these factors that present opportunity to impact the credibility of the expert in the eyes of the judge and jury.

Credibility and the God Complex

Often, the most difficult witnesses can be those whose reliability seems beyond question. The witness' scientific training or method is so well accepted in their peer group, so thorough and time-tested, that the expert believes himself to be infallible. This expert may breeze through the gatekeeping determination by the trial court. However, as is aptly demonstrated in the deposition scene from the 1993 thriller, "Malice," with actor Alec Baldwin as physician Jed Hill, this strength can too easily become a weakness, and the savvy trial lawyer needs to be prepared to deal with this witness and his credibility, especially where the trial involves a "battle of the experts."

As aptly noted by the Michigan Supreme Court, "...when a case turns on the testimony of one expert compared with that of another, the credibility of each expert is relevant to the disposition of the case. The credibility of a medical expert, therefore, is relevant to the disposition of a medical malpractice case and evidence of an expert's credibility generally is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice." Wischmeyer v. Schanz, 536 N.W.2d 760, 764 (Mich. 1995). Fortunately, both the common law and the Federal Rules of Evidence outline the tools to develop evidence bearing on the issue of witness credibility, by examining both reliability and believability, even for those holier-than-thou witnesses.

Tools Impacting Credibility: Federal Rules of Evidence and State Law

Notwithstanding their divine sense of self-entitlement, the "god complex" witness is subject to the provisions of the common law and Federal Rules of Evidence. These rules have an entire section devoted to expert testimony and opinions, set out in Federal Rules of Evidence 701-706. The Rules recognize that lay witnesses may not typically give scientific, technical or other specialized knowledge, as that role is reserved for expert witnesses under Rule 702. As noted in the above Supreme Court analysis, Rule 702 requires testimony in the form of an opinion or otherwise to be based upon sufficient facts, data, the product of reliable principles and methods and the reliable application of such principle and methods to the particular facts of the case. Thus, that rule addresses specific issues which have a significant impact upon expert credibility and provide fertile ground for impeachment.

Another aspect of the credibility analysis is set out in Rule 703, which permits opinions or inferences to be based upon facts and data perceived or made known to the expert at or before the hearing and does not require such facts or data to be admissible, "if of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject." Thus, inquiry into what that "type" of information is and whether it is peer reviewed and "reasonably relied upon" by other experts provides a basis for the credibility analysis.

The remaining 700s deal with the scope of expert testimony and who may call an expert. Rule 704 permits the expert to testify as to the ultimate issue, i.e., whether a particular act was negligent, a product is defective or an act was the cause of the particular harm. Rule 705 excuses the expert from first establishing the facts upon which the opinion is based although it recognizes that the expert may be required to disclose such facts on cross-examination. Rule 706 deals largely with Court appointed experts, but at Paragraph (d), it contains a recognition that there is nothing in the rule that limits the parties in calling their own experts. All of these rules apply to expert testimony in federal courts, and they provide a guide to develop specific tactical information to be used at trial.

Application of the Rules to the Gods

The key to successfully impacting expert credibility is to follow the road maps outlined in the rules with respect to laying or critiquing a factual foundation, the reliability of the expert methodology, the peer analysis, and ultimately the believability of the expert conclusion.

The Seven "Rs"

Many commentators speak in terms of "the seven Rs" for attacking or supporting expert witness credibility:

(1) Research

(2) Resume

(3) Read

(4) Relevant

(5) Review

(6) Retention

(7) Reprimand

These items can be addressed in a voir dire in order to call the witness' reliability into question, or on cross-examination, to attack the witness' believability. What research underpins the expert's analysis and conclusions? What particular training or skill does the expert have? Has the expert read and reviewed all of the facts of the case, read the depositions, visited the scene? Is the witness providing information which goes to prove or disprove a material fact at issue in the matter? Does the expert have bias because of income or other factors? Lastly, is the witness' standing within his own peer group subject to question?

Practical Pointers

From a practical standpoint, the trial lawyer must perform this analysis while maintaining the jury's interest in what is often highly technical and complex material. There are a few practical pointers to consider that can help hold the jury's interest. During direct examination of the expert witness, keep the jury's interest for as long as possible. An effective direct exam will use "headlines" so the jury will hear and retain important information. At the very outset, highlight the main points of the expert's opinion and her most relevant qualifications that entitle this person to reach these conclusions. The conclusions must be delivered in a convincing, clear and easy to understand manner, and the expert should be reminded to K.I.S.S. ("Keep It Simple, Stupid.) Either before or after the conclusions, the expert should provide some testimony regarding the factual underpinnings of the opinions, explaining how all of this expertise enables the conclusions reached as they relate to the specific facts of this case. At the conclusion of the testimony, counsel should always try to summarize the examination with demonstratives of some kind to remind the jury what they have just heard.

Practice Tips for Direct Examination of Your Expert

In order to most effectively achieve the goal of witness credibility, specific preparation of both counsel and the witness must take place. Counsel should review the planned interrogation in specific detail with the expert, rehearse the direct examination, review any real or demonstrative evidence, and otherwise prepare to demonstrate to the jury that the expert is more credible than the opposing expert, by training, experience, factual basis, lack of bias or believability. Prepare to specify those points on which the expert disagrees with the other expert's conclusions

The expert should feel comfortable on the stand, speak in a straightforward manner using clear and simple terms, and strive to be positive and assertive but not arrogant. Jurors are only human, and an arrogant manner will undermine believability as much if not more than any other single factor. Arrogance in manner is as important as the appearance of the witness. He should dress according to the customs of the community in which the trial is being held, speak directly and confidently to the jury but not with a sense of over-confidence. Lastly, the expert should be prepared to discuss and discredit the conclusions and methodology of the other expert.

The witness must also be prepared for cross examination and any preparation should include an analysis of the opinions, opposing opinions and any possible weaknesses.

The "Rules" of Cross Examination

With all due deference to Irving Younger and his Commandments, cross examination must focus on credibility by attacking its constituents, reliability and believability. This is done by exposing weakness in the Seven R's, and ultimately, demonstrating to the jury that the conclusion reached is simply not credible because of one or more of those factors. However, as much as it may seem, cross examination is not a free for all. There are specific rules limiting the scope and conduct of this important aspect of trial.

At the outset, the Federal Rules of Evidence provide a ready framework. Federal Rule of Evidence 611(b) provides:

Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The Court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

While the scope of cross-examination is somewhat limited by this rule to the subject matter of direct and credibility, the latter is a fairly broad field. What is a "proper "basis for impeachment of an expert? As recognized by one Court:

The Federal Rules of Evidence explicitly only provide for three methods of impeachment. Fed. R. Evid. 608 (impeachment by bad character for truthfulness or by prior bad acts); 609 (impeachment by conviction of a qualifying crime); 613 (impeachment by prior inconsistent statement). At common law, however, there were six methods of impeachment: (a) impeachment by demonstration of bias, prejudice, interest in the litigation, or motive to testify in a particular fashion; (b) impeachment by demonstration of incapacity to perceive, remember or relate; (c) impeachment by contradiction; (d) impeachment by conviction of a crime; (e) impeachment by prior inconsistent statement; and (f) impeachment by untruthful character or prior bad acts. 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 607.03(2)(a) (2d ed.1997).

Despite the fact that the Federal Rules of Evidence expressly recognize fewer methods of impeachment than existed at common law, the rules were not intended to preclude the methods of impeachment that were not explicitly recognized. Instead, the courts substitute the common law approach for impeachment of credibility with the "relevance" approach under Rules 401, 402, and 403. Id. at § 607.03(1), (2)(b). Under this approach, the inquiry is whether there is any logical tendency of given evidence to make a witness' trial testimony less credible than it would be absent its introduction. If this is the case, the evidence is admissible for impeachment, provided its probative value is not substantially outweighed by the danger of unfair prejudice under Rule 403.

Buckley Towers Condominium, Inc. v. QBE Ins. Corp., (Not Reported in F. Supp.2d) 2008 WL 5505415 at *2. (S. D. Fla.,2008).

In that case, the Court disallowed cross-examination of an opposing expert on the grounds that his prior business relationship had ended badly, but it did permit cross-examination on the basis of a prior bankruptcy filing by the expert.

Practical Pointers on Cross Examination

At the outset, it is important to remember that trial lawyers will never know more about a technical subject than the expert. Challenging a medical doctor by referring to specific entries in the Physician's Desk Reference, or an engineer by reference to specific ANSI standards is fraught with peril and can backfire, building the credibility of the very expert you are seeking to impeach. Thus, a good lawyer should focus on the strengths he brings to the battle: knowledge of the particular facts and, of course, the law.

During cross, the goal is to get in and get out unscathed, and create just enough doubt in the minds of the jury so they question the opponent's credibility and hesitate to accept the expert's testimony at face value. This can be best achieved by controlling the expert witness. Take them on voir dire or in a tightly controlled cross examination, which deprives an expert of the opportunity to demonstrate their expertise and explain their views.

If the expert does control the testimony, counsel should counter by focusing on the flaws in the methodology, analysis, or bias which will undermine credibility and keep the expert on the defensive.

Two Primary Methods of Cross-Examination

Credibility of an expert and his opinion can be impacted by either a collateral or a direct attack. Collateral attack attempts to impeach the expert on the basis of motive, in an attempt to establish bias or a conflict of interest. This method may also include attacks on education, experience, and professional qualifications and disqualifications. Direct attack challenges the witness' preparation and understanding of the facts of the case.

Thoughts on Collateral Attack

Collateral attack on the basis of bias, particularly financial bias, is one of the most time-tested methods available to counsel. For example, the Buckley Towers Condominium case discussed above specifically permitted a collateral attack on an expert on the basis of a prior bankruptcy filing, reasoning that such may provide a financial incentive for the expert to "shade" his testimony, reasoning:

Although Defendant's response does not raise this issue at all, we find that Mr. Zadikoff's prior bankruptcy filing creates a possible motive for him to testify in a particular fashion. As an expert witness, Mr. Zadikoff receives compensation for his time and testimony. Introduction of such compensation is widely recognized as proper impeachment. See, e.g., United States v. 412.93 Acres of Land, 455 F.2d 1242, 1247 (3d Cir.1972) (holding that the District Court properly permitted the introduction of an expert witness's per diem fee in order to show his possible bias); see also Fed.R.Civ.P. 26(a)(2)(B)(vi) (requiring a party to disclose information concerning its expert witness's compensation). The Court finds that similar relevancy pertains to a bankruptcy filing. It is reasonable to conclude that Mr. Zadikoff's financial hardship might motivate him to testify in a particular fashion. Naturally, an expert witness in dire financial situation is more susceptible to "adjusting" his testimony in order to please his client and receive compensation.

Buckley Towers Condominium, Inc. v. QBE Ins. Corp., (Not Reported in F.Supp.2d) 2008 WL 5505415 at *2. (S.D.Fla. 2008).

There are many additional bases upon which counsel may suggest that a witness is "adjusting" his testimony, many of which are found in the Federal Rules of Evidence or common law.

Income Information

Information pertaining to whether a witness' sole or significant source of income is as a testifying expert is discoverable and relevant to show bias. In Falik v. Hornage, 413 Md. 163,179, 991 A.2d 1234 (Md. 2010), the Maryland Court of Appeals recognized:

Obviously, a party has a strong interest in the fact-finder's assessment of the credibility of its expert witnesses. For the opposing party it is equally important to have the ability to search for legitimate evidence to impeach the credibility of those witnesses. Bias is one method of impeachment and "[i]t is well established that the bias, hostility or motives of a witness are relevant and proper subjects for impeachment." Pantazes v. State, 376 Md. 661, 692, 831 A.2d 432, 450 (2003). See also Md. Rule 5-616(a)(4) ("The credibility of a witness may be attacked through questions asked of the witness, including questions that are directed at ... [p]roving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely."). "Bias describes 'the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.' " Pantazes, 376 Md. at 692, 831 A.2d at 450 (quoting United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450, 457 (1984)). It is well established that the fact that an expert witness is being paid to testify may bear on his or her credibility and may be revealed through cross-examination. Goldberg v. Boone, 396 Md. 94, 116, 912 A.2d 698, 711-12 (2006); Wrobleski v. de Lara, 353 Md. 509, 518, 727 A.2d 930, 934 (1999); Mezzanotte Constr. Co. v. Gibons, 219 Md. 178, 181, 148 A.2d 399, 401-02 (1959). Thus, "an expert witness may be questioned on cross-examination about compensation received for testifying, as well as about the expert's history of employment as an expert witness, in order to **1244 reveal bias or interest in the outcome of the proceeding." Goldberg, 396 Md. at 116, 912 A.2d at 710-11.

* * *

[T]he focus is whether the witness has "some personal or financial incentive to produce a particular opinion." The Court also cautions that, simply because a significant portion of the income of the expert is derived from functioning as an expert witness does not mean that the witness is dishonest, inaccurate or not credible, it is simply for a factor for the jury to consider.

Id.

Thus, as noted by the Court, if a favorable expert derives significant income from functioning as an expert witness, address that fact in order to lessen its impact on credibility. Questions on direct may be used to affirmatively thwart such cross-examination. Likewise, in many jurisdictions, questions may be asked of the venire during jury selection that prepare the jury for this witness and the impact on credibility that such evidence may impart.

Many Courts have considered the issue of whether an expert witness can be compelled to produce potentially relevant information pertaining to their finances at the request of an opposing party, although there are some Courts that hold such information non-discoverable because it is held to be irrelevant. See generally Douglas R. Richmond, Expert Witness Conflicts and Compensation, 67 Tenn. L.Rev. 909, 944 (2000) (Concluding that the expert's income is irrelevant the overwhelmingly majority of the time.)

Disqualification as an Expert in Prior Matter

An expert's prior conclusions provide low-hanging fruit for counsel, ripe for picking, especially if the expert's opinion was disallowed. An analysis of prior deposition and trial testimony, draft reports, and other statements may be used to bolster or discredit a witness. This technique is not without limitation in time and scope, as the opinion used for impeachment should be reasonably related to the current opinion and within a reasonable time frame. See Roosevelt v. State, 42 So.3d 293, 296 (Fla.App. 3 Dist.,2010). In that case, the Court found that disallowance of the expert's former testimony as a guardian ad litem thirteen years prior was not admissible to show bias or otherwise, stating:

The defense's proposed evidence does not fall under any of the express ways allowed to attack a witness's credibility-it does not deal with a prior inconsistent statement, bias, character or ability to observe, remember, or recount. See § 90.608, Fla.Stat. (1987). Cruse was attempting to introduce evidence of an arguably inadequate evaluation by an expert over ten years before he ever conducted an evaluation in this case. If this were permitted, the State could then have introduced evidence that the Sireci evaluation was not inadequate and may even have gone on to introduce evidence of prior competent evaluations performed by Kirkland. If such inquiry were permissible, every trial involving expert testimony could quickly turn into a battle over the merits of prior opinions by those experts in previous cases, malpractice suits filed against them, and Department of Professional Regulation allegations.

Id.

Conviction of Crime & Federal Rule of Evidence 609

Federal Rule of Evidence 609 and many states hold that conviction of a crime of dishonesty or moral turpitude within a certain time frame is admissible to impeach any witness. Again, common law, rules or statutes may provide some limit to this method, however, as demonstrated in In re Commitment of DeBolt, 19 So.3d 335 (Fla.App. 2 Dist.,2009). In that case, a Florida Court of Appeals recognized that some evidence of misconduct may not be introduced for purposes of impeaching a witness's credibility, including instances of unethical conduct on the part of expert witnesses, or disciplinary actions in their profession. Cross-examination as to whether a witness had been formally disciplined during his treatment of adolescent sex offenders was improper, in a proceeding seeking to have an offender adjudicated as a sexually violent predator subject to civil commitment, as statutes prohibited introduction of evidence regarding particular acts of misconduct for purposes of impeaching a witness's credibility.

Commonality of Malpractice Insurance Carriers or Law Firm Relationship

Commonality of malpractice insurance is an acceptable basis for cross-examination of an expert widely recognized by many Courts, including Cummins v. Kettering Med. Ctr., 2008 WL 2222262 (Ohio App. 2, 2008). In that case, the Court specifically recognized

As discussed above, the trial court allowed Cummins' attorney to cross examine Dr. Miller regarding commonality of insurance with Dr. Pavlina. The trial court also allowed counsel to cross examine Dr. Miller about his prior attorney-client relationship with the law firm representing Dr. Pavlina. As noted above, a sidebar conference preceded this portion of the cross examination. Key portions of the discussion that occurred are identified as "indiscernible" in the transcript. (Tr. Transcript at 634-636). As a result, we once again cannot determine what else, if anything, Cummins' attorney wanted to ask or what the trial court may have prohibited him from asking. Absent our ability to make such a determination, we have no basis to find that the trial court abused its discretion in limiting the cross examination of Dr. Miller.

Id.

In addition to demonstrating another basis for a collateral attack on an expert's credibility, this case reminds counsel to be sure there is a clear record for appeal.

Specific Instance of Conduct under Federal Rule of Evidence 608(b)

A number of Courts have allowed evidence of specific instances of conduct as a collateral attack on the credibility of an expert. For example, in the Wischmeyer case, above, the Court specifically allowed inquiry into the physician expert's prior bad surgical results, as well as prior medical malpractice claims brought against him. Wischmeyer v. Schanz, 536 N.W.2d 760, 765 (Mich. 1995). However, a cautionary note to this approach is that typically, extrinsic evidence to prove these acts is inadmissible under both Federal Rule of Evidence 608(b) and many state rules.

Direct Attack

As noted above, any challenge to the witness' preparation, qualifications and understanding of the case is a direct attack, specifically envisioned and sanctioned by Federal Rule of Evidence 611(b), 702 and 703. Counsel must be vigilant and seek to expose every mistake made by the expert, every unfounded assumption underpinning her conclusions, and flaws in the methodology or application of her findings to the specific facts of the case. Counsel must also take full advantage of all depositions, interrogatories, learned treatises and other research to become familiar with both the evidence, the conclusions and methodology and the qualifications of the expert. Note that although an expert's inability to state her opinion with a reasonable degree of certainty may not always render the testimony inadmissible, it will certainly go to its weight and should be pointed out to the fact finder as bearing significantly on the believability and credibility of the witness.

The Professional Witness

As a practical matter, many expert witnesses can be attacked as a "Professional." In addition to utilizing the Collateral Attach strategies discussed above, Counsel should also utilize their own personal style or demeanor as a tactic to influence the expert. This enables counsel to appeal to the jury as a charming or "ignorant" lawyer. Where the expert has shaded his testimony, it may be advisable to become aggressive and point out the mischaracterizations of the facts or science.

Learned Treatises

Impeachment of an expert by demonstrating that his opinions differ in result or methodology from that contained in subject matter texts recognized as authoritative by the expert's peer group is another time-honored method of direct impeachment. However, Counsel should be aware that such treatises may also be utilized to rehabilitate the witness, under the "rule of completeness" or otherwise, where the impeaching material was essentially "cherry picked" from the treatise. As one Court observed:

[I]t is logical to conclude that when an adverse party impeaches an expert witness' testimony during cross-examination, the party offering the expert witness may rehabilitate that witness during redirect examination using that same treatise. Consider, for example, a case in which the adverse party impeaches an expert witness using deceptively select portions of a learned treatise. Fairness would dictate that, following cross-examination, the offering party be allowed to ask the expert witness whether, perhaps, there was another section of the same learned treatise that supported the expert's opinion or if there were some reason why the passage at issue during cross-examination was not the basis for the expert's opinion."

Hilgendorf v. St. John Hosp. and Medical Center Corp., 630 N.W.2d 356, 374 (Mich.App. 2001).

When an opposing expert witness refuses to accept a treatise as authoritative and reliable, counsel may lay the foundation that the treatise is authoritative and reliable using its own expert. See Armstrong v. Brown, 2002 WL 31812942 (Ohio App. 11 Dist. 2002).

Inconsistent Statements

The use of prior inconsistent statements as a method of impeachment is not only permissible, it is one of the dearest and most revered trial tactics for exposing less-than-truthful testimony. It is preserved at Federal Rule of Evidence 801(d)(a) and implicitly (b) (prior inconsistent statement and prior consistent statement to rebut an express or implied charge of fabrication or improper influence or motive). Expert witnesses provide fertile ground for the use of prior inconsistent statements in the form of prior depositions, reports, and trial testimony.

The use of draft reports can be particularly rewarding. For example,in Iaccino v. Anderson, --- N.E.2d ----, 2010 WL 4967822 (Ill.App. 1 Dist. 2010) an expert witness physician was impeached by the use of a prior inconsistent medical record. That Court noted the black letter law that the prior statement must be materially inconsistent with trial testimony and there must be a proper foundation as to the time, place and circumstance of the statement and what the substance of the statement is, in order to impeach. Defense counsel was permitted to impeach the medical expert by using a written medical report which interpreted a fetal monitor strip in a manner that was inconsistent with his trial testimony. Rejecting the Plaintiff's argument that the written medical report was only a "threshhold opinion" prepared before the full development of all facts during the course of discovery, the Court noted:

. . . There was nothing in the statute that prevents the author of such a report from qualifying his opinions to make clear that they are preliminary opinions subject to amendment or supplementation upon the acquisition of additional information such as additional medical records or deposition testimony.

Id. at *3.

Of course, the Court continued, the doctor could always explain that the report was a preliminary report during his testimony and it would be up to the jury to assess that explanation in evaluating that witness' credibility. Thus, this opinion provides an excellent example of impeachment as well as a method to rehabilitate the expert who has been impeached and attempt to reestablish credibility in the eyes of the jury.

Rehabilitation of An Impeached Expert Witness

Remember that the key to expert effectiveness is credibility in the eyes of the fact finder. How the witness was impeached will clearly impact how he may be rehabilitated, but one rule holds constant regardless of the method of impeachment: The first few moments are critical on re-direct. If evidence of bias was introduced on cross, through demonstrating the "professional" status as a witness, elaborate on the many times the witness has testified for the opposing side, or refused to offer testimony because the facts of a particular case did not have merit. If the factual underpinnings of the expert were called into question, highlight why the facts relied upon were the most important, or why the facts that did not form a basis were not part of the opinion. The expert must clearly, convincingly and concisely state the reasons why her opinions are not inconsistent. At that point, the expert can take more time to fully explain her answer but still must exercise caution not to drown out or overshadow her denial of any inconsistency.

Conclusion

Is the expert witness Will Rogers or Mark Twain? Or does he present more like Alec Baldwin's portrayal of Dr. Jed Hill, the foreboding figure with a god complex? Once the threshold gate of reliability is crossed, counsel must remain vigilant to assess the witnesses' believability and credibility and to present relevant, admissible evidence, with a logical tendency to make the witness' trial testimony more or less credible to the jury, often in spite of the witness. In the battle of the experts, the prepared mortal is the one best able to use the available credibility tools to win the battle with the gods and to achieve the best result.