Utilizing Expert Witnesses
By Brian D. Chase and Scott D. Raphael
Expert witnesses have become an essential part of modern trial practice. Unfortunately, their use has become almost too casual, with may practitioners on both sides resorting to an almost “knee-jerk” routine of hiring experts in every case. Contrary to what may be prevailing conventional wisdom, however, not every case genuinely requires retention of experts, although in most cases testimony from treating physicians (nonretained experts) is still required to carry the burden of proof on causation of injury.
This article focuses on the questions of how to judge whether retained experts are genuinely required in a case and, when a case calls for it, how the handle the selection and retention process.
Where Expert Testimony is Essential to Prima Facie Case
In general, early evaluation of the required prima facie elements of the case is highly recommended so that decisions on expert witnesses can be made at an early date, particularly where the issues are complex.
There are, of course, many instances in which Plaintiff’s burden of proof of one or more elements required to establish a prima facie case cannot be proven without expert testimony. Examples include, but are by no means limited to:
- Professional medical negligence (breach of standard of care), Landeros v. Flood (1976) 17 Cal.3d 399, 410;
- Causation of personal injury to the minimum threshold of reasonable medical probability, Jones v. Ortho Pharmaceutical Corp., (1985) 163 Cal.App.3d 396, 403;
- Causation of automobile accident, Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1616;
- Seat belt usage – whether failure to do so was cause of injury, Franklin v. Gibson (1982) 138 Cal.App.3d 340 343.
- Valuation of real property, California Evidence Code § 813; Redevelopment Agency of City of Long Beach v. First Christian Church (1983) 140 Cal.App.3d 690;
In personal injury cases, plaintiff bears the burden of proof as to each element of his cause of action, including proof of injury causation. As such, every personal injury case will require at least an expert medical opinion to the extent of a reasonable medical probability that the accident or injury mechanism in question was a substantial factor in bringing about the Plaintiff’s injuries (or aggravation of Plaintiff’s pre-existing injuries). Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at 403.
However, this causation testimony need not come from an expert retained and compensated by the Plaintiff’s counsel. In its recent decision in Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, the Supreme Court held that:
A treating physician is a percipient expert, but that does not mean that his testimony is limited only to personal observations. Rather, like any other expert, he may provide both fact and opinion testimony. As the legislative history clarifies, what distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar with the plaintiff’s injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion. The contextual nature of the inquiry is implicit in the language of section 2034, subdivision (a)(2), which describes a retained expert as one “retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action.” (Italics added.) A treating physician is not consulted for litigation purposes, but rather learns of the plaintiff’s injuries and medical history because of the underlying physician-patient relationship…. [¶] [T]o the extent a physician acquires personal knowledge of the relevant facts independently of the litigation, his identity and opinions based on those facts are not privileged in litigation presenting “an issue concerning the condition of the patient.” (Evid.Code, § 996; 1 Hogan & Weber, Cal. Civil Discovery, supra, s 8.19, at p. 437; 2 Hogan & Weber, Cal. Civil Discovery, supra, § 12:11, at p. 62; Id, § 12.24, at pp. 110-111.) For such a witness, no expert witness declaration is required, and he may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience. This may well include opinions regarding causation and standard of care because such issues are inherent in a physician’s work. An opposing party would therefore be prudent to ask a treating physician at his deposition whether he holds any opinions on these subjects, and if so, in what manner he obtained the factual underpinning of those opinions.” Schreiber, supra, 22 Cal.4th at 35, 39 [emphasis supplied].
As such, if early in the development of the case, the Plaintiff’s attorney is able to elicit useful opinions from the Plaintiff’s treating physicians favorable on causation, or even standard of care, as long as these opinions were formed during the treating physician’s percipient treatment of the patient, anything goes. It was for that reason that the Supreme Court expressly admonished defense counsel that it “would therefore be prudent to ask a treating physician at his deposition whether he holds any opinions on these subjects, and if so, in what manner he obtained the factual underpinning of those opinions.” Id., 22 Cal.4th at 39. Plaintiff”s counsel may legally use a non-retained treating physician for his entire case, even to prove breach of the standard of care in a medical negligence case, as long as the treating physician testifies that his opinions were formed “independently” during the course of his care and treatment for the patient. Of course, even a non-retained expert’s name and address must be disclosed in the expert witness designation, but (s)he need not be produced for deposition by the Plaintiff and no expert declaration for the treating physician under C.C.P. § 2034(f)(2) is required. See, Schreiber, supra, 22 Cal.4th at 36-37; Hurtado v. Western Medical Center (1990) 222 Cal.App.3d 1198, 1202-1203.
The same rules would apply to other non-retained experts who necessarily form percipient opinions independently of potential litigation during their involvement in the accident or incident later giving rise to a lawsuit. For example, coroners typically make excellent experts in wrongful death and survival death actions easily capable of testifying to many of the essential requirements of cause of death, the causal relationship between an accident mechanism and fatal injuries, and a discrete period of survival of a decent post-accident (essential to a tenable survival action). Coroners often bring great credibility to the stand and must necessarily consider during their “percipient” forensic examination and investigation many of the same issues extant in the causation analysis the burden of proof of which Plaintiff must bear in a wrongful death action. Police officers, while typically trained to some extent in accident investigation techniques, are usually less helpful due to the relatively scant nature of their accident investigation expertise and relative ignorance during their investigations of contributing causes (e.g., the failure of a product due to defects in design). In a relatively simple case, however, they may prove useful as an cost-effective alternative to a retained accident reconstructionist. Fire department and emergency personnel should also be considered as relatively useful cost-effective percipient experts, though once again their expertise may be limited by their inexperience.
In general, early attention should be paid to the potential for nonretained expert to become cost effective substitutes for more costly experts. Effort should be made at the outset of a case to interview these witnesses to ascertain the extent of their usefulness and statements secured if possible, to memorialize the percipient formulation of opinions prior to immersion into the litigation process where challenges may arise as to when and specifically for what purpose such experts’ opinions were genuinely formed or developed. Caution must always be exercised that the nonretained expert be presented for such purposes in good faith. For example, plying an otherwise treating physician with numerous medical records of other treaters for the sole purpose of eliciting an opinion as to the necessity or reasonableness of the medical bills and treatment incurred, a process which would not normally be part of the treating physician’s percipient course of treatment for the patient, could render any such opinions on those topics formed subject to the requirement of treating that physician as a retained expert. Thus, when in doubt as to the possible need for future litigation-based opinion testimony on such matters, if a good relationship exists with the treating physician and she is willing to become retained, such retention is advisable out of an abundance of caution.
Do I need a Retained Expert Witness?
Theoretically, after initial review of each case intake, every practitioner should go immediately to the Book of Approved Jury Instructions (BAJI) and ascertain precisely what the prima facie elements of each cause of action are, and in turn determine during that process whether expert testimony is genuinely necessary. Putting aside the obvious expert issue of causation, one of the critical questions to answer at an early juncture in a case is can the case be feasibly proven without experts. All too often assumptions are made that certain areas of testimony require expert opinion evidence, when the law does not require it. Keep in mind that Evid.C. § 800 states: “[i]f a witness is not testifying as an expert, his testimony in the form of any opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) rationally based on perception of the witness; and (b) helpful to a clear understanding of his testimony.” [emphasis supplied] Accordingly, there are numerous areas of opinion evidence which the law permits to be established by lay opinion testimony including, but not limited to:
- Identity and appearance based on witnesses’ own perception, People v. Perry (1976) 60 Cal.App.3d 608, 612;
- Age of a person, People v. Caldwell (1921) 55 Cal.App.2d 280, 296;
- Size, People v. Helm (1907) 152 Cal. 532, 546.
- Speed or velocity (1962) Rash v. City of San Francisco (1962) 200 Cal.App;.2d 199, 204;
- Distance, Dean v. Feld (1946) 77 Cal.App.2d 327, 330;
- Pain and/or suffering of a third party, Capelouto v. Kaiser Foundational Hospital (1972) 7 Cal.3d 889, 895;
- Intoxication of an individual, People v. Garcia (1972) 27 Cal.App.3d 639, 643; People v. Williams (1988) 44 Cal.3d 883, 914.
- Value of ordinary nontechnical services, Parsons v. Kazange (1958) 158 Cal.App.2d 779, 783;
- Value of one’s own property, Evid.C. 810, 813; Schroeder v. Auto Driveway Co. (1974) 11 Cal.3d 908, 921.
- Value of one’s own services, Donovan v. Ziv Television Program, Inc. (1966) 245 Cal.App.2d 593, 609.
Where, on the other hand, a critical matter of proof to be established in evidence is beyond the common (or lay) understanding, then expert witness opinion evidence is unavoidable. See, California Evidence Code 801.
Areas Where Expert Testimony is Inappropriate
Notwithstanding the ostensible need for an expert in such a complex area beyond the common lay understanding, there still remain areas where expert witness testimony is inappropriate and/or inadmissible regardless of the experience and qualifications of the expert. Experts may not render opinions on an “improper matter.” (California Evidence Code § 803. For example, “it is thoroughly established that experts may not give opinions on matters which are essentially within the province of the court [or the jury] to decide.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 884.) Some of these areas include:
- Evaluation of credibility of witnesses, People v. Sergill (1982) 128 Cal.App.3d 34;
- Whether attorney had probable cause for filing lawsuit in malicious prosecution action, Sheldon Appeal Co. v. Albert & Oliker, supra, 47 Cal.3d at 884.
- The risks and benefits of a product in a product liability case where the plaintiff has appropriately elected to proceed on the consumer expectations test, Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 566.
- The interpretation or meaning of a statute or law, and/or its application or effect given certain facts, People v. Torres (1995) 33 Cal.App.4th 37, 45-46 [experts’ interpretation of meaning or purpose of statute improper]; People v. Ochoa (1991) 231 Cal.App.3d 1413, 1422-1424 [expert’s testimony on meaning of governmental regulations improper]; Howard Jarvis Taxpayers Ass’n. v. City of Riverside (1999) 73 Cal.App.4th 679, 689 [expert’s opinion on the meaning, interpretation and/or application of Proposition 218 improper];
- The meaning and/or interpretation of terms of a contract, Cooper Companies v. Transcontinental Ins. Co. (1995) 31 Cal.App.4th 1094, 1100; accord Devin v. United Services Auto. Assn. (1992) 6 Cal.App.4th 1149, 1158, fn. 5;
In addition to proscriptions on the foregoing types of improper expert opinion testimony, there are further restrictions on what a retained expert may testify to. The California Supreme Court has declined to adopt the federal gatekeeping standard of Daubert v. Merrill Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 113 S.Ct. 2786. (See, People v. Leahy (1994) 8 Cal.4th 587.) However, it remains well-settled law that an expert nonetheless may not base his/her opinion on speculation or conjecture. (Smith v. ACandS, Inc., (1994) 31 Cal.App.4th 77, 93.) Nor may the expert base his or her opinion on unproven facts. (See, Hyatt v. Sierra Boat Co., (1978) 79 Cal.App.3d 325, 338.) Nor may an expert base his opinion on assumptions of fact based on insufficient data. (Blecker v. Wolbart, (1985) 167 Cal.App.3d 1195, 1205; Richard v. Scott, (1978) 79 Cal.App.3d 57.) It is equally established that the expert also may not base an opinion on facts which are contrary to the evidence and/or which ignore the evidence. (Hyatt, supra, 79 Cal.App.3d at 338; Estate of Powers, (1947) 81 Cal.App.2d 480.) “It is well-settled that an expert’s assumption of facts contrary to the proof destroys the opinion.” (Hyatt, supra, 79 Cal.App.3d at 338, citing, Winthrop v. Indust. Accid. Comm., (1931) 213 Cal. 351, 354-355.) Nor may an expert bootstrap into evidence out of court opinions nor rank hearsay into evidence under the “guise” of expert opinion evidence. See, e.g.,People v. Coleman, (1985) 38 Cal.3d 69, 92; Whitfield v. Roth (1974) 10 Cal.3d 874 [medical malpractice defense expert’s purported recitation of opinions of his colleagues who reviewed X-Ray films and likewise could detect no abnormalities held inadmissible hearsay]; Korsak v. Atlas Hotels, Inc., (1992) 2 Cal.App.4th 1516, 1522-1528 [hotel mechanical engineer’s recitation of outcome of telephonic survey of other hotel’s maintenance practices held inadmissible hearsay]; See, also, Continental Airlines v. McDonnell Douglas Corp., (1989) 216 Cal.App.3d 388, 416; Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 860-862; Grimshaw v. Ford Motor Co., (1981) 119 Cal.App.3d 757, 788 [Plaintiff’s expert properly precluded from reciting the details of reports and studies supporting his opinion which were independently inadmissible hearsay]; People v. Piper, (1980) 103 Cal.App.3d 102, 122. ) Such experts testifying at trial “may not under the guise of reasons [supporting his or her opinion(s)] bring before the jury incompetent hearsay evidence.” (People v. Coleman, supra, 38 Cal.3d at 92.) The rationale for this rule largely lies in the absence of adequate cross-examination safeguards. (See, Whitfield v. Roth, supra, 10 Cal.3d at 895.) Moreover, while “[o]rdinarily, the use of a limiting instruction that matters on which an expert based his opinion are admitted only to show the basis of the opinion and not for the truth of the matter cures any hearsay problem involved,… in aggravated situations, where hearsay evidence is recited in detail, a limiting instruction may not remedy the problem. (California Evidence Code § 352, 355; see Conservatorship of Buchanan, 78 Cal.App.3d 281, 289; Kelley v. Bailey, 189 Cal.App.2d 728, 738; see, also, Adkins v. Brett, 184 Cal. 252, 258.” (Grimshaw, supra, 119 Cal.App.3d at 687-688.)
In retrospect it would seem in our firm’s experience that many practitioners, particularly on the defense, may unwittingly retain experts whose sole purpose for existence is to render testimony on such clearly improper matters. Careful attention should be paid at the outset of a case as to whether the anticipated course and scope of the retained expert’s testimony will be properly admissible at trial so as to justify the retention.
Okay, So I Need an Expert – Where Do I Find One?
Once the decision has been made to retain an expert, the next question becomes where do I find one. There are many sources of experts. Word of mouth and personal referrals of other practitioners are by far the best source of such experts. Referrals from organizations such as Attorneys Information Exchange Service and from trusted, previously employed, experts are the second best source. The published verdict services provide the third-best source since the proof of the pudding of course lies in the experts’ tried-and-tested trial performances. When those measures fail, there are plenty of yellow pages, green pages and services who specialize in locating and furnished experts who are typically advertised heavily in the trade literature. While these experts’ performances generally tend to be satisfactory, competitive commercial expert provision services tend to be costly. In our experience, however, the fact that experts may have been retained through a commercial services has not appeared adversely to affect or influenced jury’s perceptions of the experts which still in out opinion appear based solely on the expert’s individual performance and not on who may have brought his availability to the attorney’s attention.
Managing Experts Once Retained
Once the expert is selected, there can’t be enough said on the importance of careful expert management, both in terms of opinions and expenses. It is assumed that every attorney will, following receipt of the expert’s referral, conduct some type of expert interview. Aside from ascertaining the expert’s views on the case’s merits, there are two critical areas of expert management. The first is the ultimate admissibility of the expert’s opinion, and the second is the financial management of the expert and balancing test for expert retention viability.
As stated above, California’s state courts do not employ the Daubert test relied upon by the federal judiciary as a gatekeeping function. See, People v. Leahy, supra, 8 Cal.4th 587. But experts’ opinions in California Courts with regard to evidentiary testing and opinions drawn therefrom must still pass muster under the People v. Kelly (1976) 17 Cal.3d 24, i.e., foundational evidence must be adduced to prove general acceptance of the experts’ methods within the relevant scientific community.
The difficulties and nuances of admission of expert opinion evidence under Daubert and Kelly are largely beyond the scope of this article. Suffice it to say, however, that relatively new scientific techniques or methods relied upon by the expert are just as potentially vulnerable to foundational attack under Kelly in a California superior court as such methods may be so under Daubert in federal court. Candid and thorough discussion of the relative acceptance of any such expert methodologies must therefore be a part of every such initial attorney-expert interview. The attorney should not hesitate to ask the expert if his or her testimony has ever been excluded or stricken in any trial court for any reason. It is regrettable that a number of experts will be not volunteer such details unless specifically asked.
Then there is the perhaps more critical issue of financial expert management. Even upon furnishing the initial information required or requested by the expert for his or her initial review, reasonable limitations on time and expense by the expert should be insisted upon to protect the client. Budgets for each phase of the expert’s anticipated work should likewise be insisted upon and stuck to. As early as possible, the expert should provide an estimate of the total amount of work and expense required through trial and this should be thoroughly documented to reduce misunderstandings at a later date.
Of course, a cost-benefit decision should also be made at an early date once the expert’s estimate and budget are received as to the cost-effectiveness of the expert’s participation in light of the genuine need-for-proof issues extant in the case.
As with any aspect of pretrial preparation, ascertaining what retained and nonretained experts, if any, are desirable is best made at the earliest possible early date. Many practitioners defer the issue of expert retention until late in the litigation process, typically for a variety of reasons. Cost is one, in that many cases may settle before experts must be retained (and paid retainers). Timing is another, because the expert witness designation usually occurs only 50 days before the trial date trial, C.C.P. § 2034(c), and under § 2034, the expert witness designation process cannot even commence until the trial date is set. But even with less complex cases, experts retained at least initially as consultants (whose identity and opinions remain protected work product privileged from disclosure until they are presented for deposition, County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647), can provide extremely useful guidance for discovery and critical evidence gathering at an early date. These consultants may also provide early useful insight which may actually save counsel and the client money by pinpointing key liability issues to be developed early on with a modicum of carefully-tailored cost-effective, efficient discovery. Conversely, with larger and more complex cases, a knee-jerk tendency to retain experts should be tempered with careful assessment of the technical case burden of proof issues, many of which may actually be proven without the need for costly expert opinion evidence and/or with strategic use of nonretained experts. Of course, once any experts have been retained, the importance of careful expert expense management and supervision cannot be understated. It is prudent to remember that it is still the client’s money which is being spent, and the fiduciary duty owed with regard to expert cost control is as compelling as any owed with regard to the substantive outcome of the case itself.