OMG! My expert was excluded! The 4 rules to cure this plague.

Making a case for cooperation agreements for defense of motions to exclude expert testimony.

By Steve Powell, President, Unified Investigations & Sciences, Inc., a Sedgwick company 

When an insurance carrier or self-insured has a claim for injuries or damages due to liability related to an incident, that claim is often investigated by experts that are hired by the carrier or self-insured to figure out what happened and how it happened. After the experts' depositions are taken, frequently the opposing party's attorney files a motion to exclude expert testimony. This is often referred to as a Daubert challenge. You would think that the insurance carrier or self-insured that hired the expert would want to fight the opposing attorney's motion to exclude the expert's testimony. Unfortunately, too often these motions to exclude go unopposed and unbeknownst to the testifying expert, the expert and her testimony is excluded by the Judge. Because the expert was never advised that the motion was filed, the expert gets sucker punched and the case is lost and the expert now has a black eye.

The frequency of these motions to exclude expert testimony has increased exponentially in recent years.

The opposing attorney’s motion to exclude the expert’s testimony will claim that the expert did not meet one or more of five things the expert must be able to show for the expert’s opinion to be admitted in a Court. Those five things are: (1) the expert is qualified; (2) the expert’s methodology is reliable; (3) the underlying data is reliable; (4) the evidence is relevant; and (5) the expert’s opinion would assist the trier of fact.

Frequently, the opposing attorney’s motion to the exclude the expert’s testimony challenges the methodology the expert uses. To get the Judge to deny the opposing counsel’s motion, the expert must be able to prove satisfaction of the required Daubert standard, including any additional factors required by the particular state, for the expert’s opinions to be admissible in a court of law. That is especially hard to do when the expert is not informed that the motion to exclude her testimony has even been filed.

Attempts at expert preclusion are now standard practice in complex litigation, and preclusion can have a meaningful impact on the insurance carrier or self-insured and on an expert’s professional and economic interests. Parties that hire experts should require that the expert be involved in responding to efforts to preclude the experts. That requires cooperation.

There are four things that insurance carriers or self-insureds (Clients) must do, in cooperation with their attorney panels and hired experts, to cure this plague:

1.  Advisement. Clients must advise their hired experts immediately upon the filing of any motion to exclude, motion to preclude, motion in limine, motion related to Federal Rules of Evidence Rule 702 or any similar state evidentiary rule, or any or Daubert-style motion challenging the expert the Client hired. The Client must advise its hired expert as to all deadlines related to any written opposition to any motion or any hearing related to any challenge.
2. Assistance. Utilize the assistance of your hired expert in developing any written opposition to any such written motion. Because most challenges are based upon methodology, your hired expert will be a huge assistance to your attorney in defending the methodology that is being challenged.
3. Private Counsel. Allow your hired experts the right to select private counsel to prepare any written opposition to such a motion and/or to represent the hired expert in any formal hearing related to said motion. Utilizing all reasonable and appropriate means to obtain the pro hac vice admission of counsel selected by their hired experts is in everyone’s best interest.
4. Decision or Ruling. You and your attorney will receive a decision or ruling from the Judge. Provide your expert with a copy of the decision or ruling on any such motion.  

No one, not even your attorney working the case for you, will fight as vigorously to defeat the opposing side’s motion to preclude expert testimony as the expert that is in the cross hairs. It is always in your best interest to have a cooperation agreement in writing with the attorney and with your experts that you hire that require these four things. There is never a wrong time to do the right thing, and it is always the right thing to utilize the assistance of your expert in these matters.