How to Use an Expert Witness Effectively in Tennessee Courts

By Joseph Allen Kelly

If you litigate enough cases, sooner or later (probably sooner) you will be faced with the decision of whether to retain an expert to help explain complicated issues to the fact finder. The process of working with an expert can be difficult; you may find yourself caught between the tension of the expert's need to maintain his or her independence (and thus credibility) and your need for the expert to support crucial elements of your case. This article examines some of the issues, practical and evidentiary, in working with experts in Tennessee courts.

I.  Selection and Retention of an Expert

It is important to analyze your case at the outset to determine what type of experts you will need. The theme of your case will help determine what experts you will need. You should retain the minimum number of experts necessary to make your point. This could be one expert; it could be three. However, the fewer experts you retain, the less likely there will be inconsistencies between experts.

Fewer experts may also reduce the overall cost. An important point to consider on cost: If you are considering postponing consulting an expert for cost reasons, think: "What will happen to my case if my expert is excluded?" It is better to work with your experts from the outset of the case to insure the consulting experts you have retained can be reliably converted into testifying experts. Early identification of experts also allows you more time to find replacement experts if you run into trouble with your existing experts.

Before you retain an expert, you have to find him or her. Where do you look? First you can talk to your client. Your client may have specialized knowledge in the relevant field. However, you should be careful of hiring internal (client) or other client affiliated experts because you may put the expert's objectivity at issue and may even face having the experts testimony excluded. See, In re Fred Hawes Org., Inc., 957 F.2d 239 (6th Cir. 1992), In re Washington Mfg., 133 B.R. 113 (M.D. Tenn. 1991). The search for an expert can include research of: trade publications, trade organizations, universities, other lawyers, accountants, bar publications and organizations, a review of case law in the applicable area, and the internet.

In analyzing a potential expert you should consider many factors, including: reputation; age and experience; qualifications; and personality. Personality should be pleasing yet firm. You should also be aware of potential concerns (too frequent a witness, disciplinary problems). Research your expert (Google, Lexis/Westlaw, and MDEX) and review prior depositions and transcripts, reports and scholarly work. You should also discuss the expert with other attorneys who have been involved in cases with the expert.

Once you have decided to retain an expert to consult in the case, it is important that you fully understand the expert's opinions before he or she reduces them to writing and becomes a testifying expert. You need to satisfy yourself that the expert's opinions will be compatible with your theory of the case and the likely evidence. You need to determine this during the consulting phase of the relationship so that once the decision is made to retain the expert to testify, the expert can maintain his or her independence in formulating the opinion. Because your use of an expert can vary (consulting only, report, deposition, and/or trial testimony), your fee arrangement should cover all potential services.

II.  Working With the Expert on His or Her Report and Preparing the Expert Witness for Examination

Once you have retained an expert you should help the expert become familiar with the issues in the case. Send the expert the complete records, including good and bad literature. You should send the expert relevant company documents. It is good practice to send the expert all pleadings and discovery produced in the case. Also discuss admissibility standards with the expert so the expert understands the standards to which his or her testimony will be held. (Those admissibility standards are discussed further below.)

When the expert begins preparation of the actual report, it is important to remember that the report must be the expert's not the lawyer's. While you may provide guidance in such non-substantive areas as format, it is important the expert write his or her own report. The expert must "own" his or her opinions. Because of the need for expert independence in the preparation of the report, it is important to confer with the expert prior to the issuance of the final report.

Generally, the expert will be deposed after the report has been issued. Plan to meet with the expert at least a week before the deposition. At that time, you should make sure the expert's materials have been appropriately updated, review the expert's key findings with the expert and explore expected avenues of inquiry.

During the deposition, an expert should follow the same guidelines as any other witness: Tell the truth; listen to each question; answer the question asked; avoid personal argument. The expert needs to be objective and should avoid expressing opinions outside his or her area of expertise. The expert should also remember it is not his or her job to argue the case, but at the same time must be prepared to stand his or her intellectual ground and defend his or her opinions in a professional and reasonable way. If the answer is complex, the expert can summarize at the end.

III.  Evidentiary Issues for Expert Testimony

Since you have gone to the time and expense to retain an expert and produce a report, it would be nice if the expert's testimony is actually heard by the jury. For this reason, it is important to understand the gatekeeper function of judges in Federal and State Courts in determining just what expert testimony is admissible at trial. The remainder of this article will provide a brief outline of admissibility standards for expert testimony in Federal and Tennessee State Courts.

Admissibility of Expert Witnesses: Federal Law

For seventy years, the standard in Federal Court for the admissibility of expert testimony was the Frye Standard, so called after the case that set the standard, Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923). In short, the Frye Standard required that a theory have "general acceptance" in the field of science before expert testimony would be admissible in court.

The "general acceptance" standard remained the law of the land until Daubert v. Merrell Dow, 509 U.S. 579 (1993). Daubert had sued Merrell Dow alleging birth defects from ingestion of the drug Bendectin. The Southern District Court of California granted summary judgment to Merrell Dow on the basis that the plaintiff's expert's scientific theory was not "generally accepted" (the Frye Standard). The Ninth Circuit Court of Appeals affirmed the District Court. Then, with Justice Blackmun writing the opinion, the Supreme Court rejected the Frye Standard, stating that "[n]othing in [Federal] Rule [of Evidence] 702 establishes 'general acceptance' as an absolute prerequisite to admissibility..." and [t]hat austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials."

The Supreme Court, in striking down the Frye Standard, affirmed the gatekeeper function of the trial judge. The Supreme Court affirmed that "[u]nder the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable".

The Daubert case offered a standard, often called the Daubert Test, for judging the reliability, and thus admissibility, of expert testimony in Federal trials: In short, an expert may testify on: (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. The Court identified additional factors regarding the validity of the methodology utilized by the expert:

• Whether the theory can be, and has been, tested.
• Whether the theory has been subjected to peer review.
• Whether there is a known or potential rate of error.
• Whether the theory has gained widespread acceptance in the scientific community.

The Daubert Test brought case law more in line with the provisions of Federal Rule of Evidence 702 which had been enacted after the original Frye decision. FRE 702 provides that expert testimony is admissible if: (1) it is sufficiently based upon reliable facts or data; it is the product of reliable principles and methods and; the witness has applied the principles and methods reliably to the facts of the case.

Subsequent Supreme Court decisions have further explained the Daubert Test. In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the Court held that "[a]buse of discretion is the appropriate standard of appellate review of a trial court's admission or exclusion of expert testimony." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), clarified that the Daubert Test applies to engineers and other experts who are not, strictly speaking, scientists. In expanding Daubert the Court reasoned there is "...no relevant distinction between 'scientific' knowledge and 'technical' or 'other specialized' knowledge."

Admissibility of Expert Witnesses: Tennessee Law

The standard for admissibility of expert testimony under Tennessee law is similar, but not identical to, the Federal standard. For starters, Federal Rule of Evidence 702 states that to be admissible, evidence must assist the trier of fact. Tennessee Rule of Evidence 702 states that to be admissible, evidence must substantially assist the trier of fact. What does the insertion of the word "substantially" mean as a practical matter? According to the leading Tennessee case which moved away from a version of the Frye Standard that had been the law in Tennessee, "this distinction indicates that the probative force of testimony must be stronger before it is admitted in Tennessee." See, McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997).

In the McDaniel case, the plaintiffs alleged they suffered brain damage due to chronic exposure to organic solvents while employed at CSX. The plaintiffs filed suit under the Federal Employers' Liability Act. In bringing this suit, the plaintiffs intended to rely upon the expert testimony of several physicians. The plaintiffs encountered a problem with the physicians' proposed testimony regarding the causal connection between the plaintiffs' exposure to the solvents and the resulting brain damage to the plaintiffs because the physicians' theory was arguably not "generally accepted", which was the standard for admission at the time. Despite defense objections, the trial court allowed the expert testimony based on the Frye 'general acceptance' standard.

In McDaniel, the Supreme Court of Tennessee affirmed the admissibility of the testimony, but instead of the Frye Standard used by the trial court, the Supreme Court employed a form of the Daubert Test. The Tennessee Supreme Court ruled that "Tennessee Rules of Evidence 702 & 703 "supersede the general acceptance test of Frye." The Court went on to detail the test for admissibility for expert testimony in Tennessee: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether . . . the evidence is generally accepted in the scientific community; and (5) whether the expert's research in the field has been conducted independent of litigation. The fifth factor reflected a Ninth Circuit Court of Appeals addition to the original Daubert Test when it reconsidered Daubert on remand from the Supreme Court. Daubert v. Merrell Dow, 43 F.3d 1311 (9th Cir. 1995).

While the Tennessee standard on its face is more demanding for admission of expert testimony, as a practical matter, it is unclear whether it is more difficult to proffer admissible expert testimony under the Tennessee state standard than it is under Federal standard. Anecdotal evidence tends to indicate that it is not more difficult. That said, you should be prepared to qualify your expert under the Daubert or McDaniel standard as appropriate for the forum of the trial. Failure to do so can put the admission of the expert's testimony in jeopardy and with it, perhaps your case.

IV.  Conclusion

The Roman poet Virgil gave us a Latin phrase that is still in common use: "Experto credite." This translates roughly to "Believe an expert." The standards for admissibility of expert testimony are in recognition of the power of this type of testimony. Because of the persuasive effect that can come with good expert testimony, it is important to carefully attend to the expert testimony component of your case from start to finish. Hopefully this little article provides some guideposts for ferrying your expert from selection to successful testimony at trial.