The Consequences of Having Your Expert Testimony Challenged

Judges and juries have grown increasingly sensitive to fraudulent expert testimony--meaning all challenges must be handled with the utmost care.

Due to the consistent abuse and misuse of expert witness testimony, the District Attorney typically scrutinizes most expert witnesses before they even take the stand. But the vetting doesn't just stop there. In fact, having an expert witness on both sides often intensifies scrutiny to set one apart from the other. In a so-called "battle of the experts," the consequences of having your expert testimony challenged cannot be understated.

Daubert Challenge

Since the Supreme Court's ruling in 1993, expert witnesses are expected to be able to meet the Daubert Standard, and they likewise should be able to defend against all Daubert challenges. Some legal authorities even suggest including a plain statement of the expert's Daubert responsibilities in the retainer agreement. Including a clear recital of the expert's reasoning in a written report will also ensure that the testimony meets the burden of admissibility in a Daubert challenge.

Examples of Failed Challenges

Failing to meet a challenge to your testimony can quickly cause you to lose the case, as evidenced by the following examples.

In Re Windisch, 138 S.W.3d 507

The plaintiff's expert failed to establish his qualifications to put forth an opinion on the case's subject matter in his report. Since the case involved medical malpractice, it also required the expert to demonstrate the training or experience that supported his opinion on this specific medical procedure, which he likewise failed to do.

IQ Prods. Co. v. Pennzoil Prods. Co., 305 F.3d 368 (5th Cir. 2002)

This false advertising case excluded expert witness evidence on the grounds that it used an unreliable methodology and insufficient data. The experts in this case neglected to conduct market research that market analysts would commonly use to verify data. Moreover, the experts relied on data that could not be tested or verified, thus it could not be used as sufficient evidence.

Fraud-Tech, In. v. Choicepoint, Inc., 102 S.W.3d 366 (Tex. App.-Fort Worth 2003, no pet.)

Judgment was granted to the defendant in this case on lost profit damages, after the plaintiff's expert testimony was excluded due to a failure to demonstrate the reliability of economic assumptions. The appellate court further affirmed that opinions regarding lost profits "must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Mere speculation by the plaintiff does not constitute objective information needed to establish lost profits."

That last case in particular demonstrates how expert peer review can be so essential. You need to establish necessary credibility and provide indisputable evidence to support the expert's testimony and ensure survival from opposing challenges. JuriLytics provides a powerful, court-tested peer review system that offers extra insurance against all challenges and scrutiny.

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