Deposing Testifying Experts on Past Exclusions Under Daubert and Such

There’s nothing quite like deposing an opponent’s retained testifying liability expert.  They are typically skilled and savvy deponents who know many of the tricks of the trade.  They make much of their living testifying in court. Past deposition transcripts, if they can be located, yield a wealth of information about the expert’s background, methodology, and, of course, their pet peeves. Plus, these experts usually know of the Daubert case and what must be done to avoid being excluded as an expert in a case.  Some experts even advertise on their websites that they have never been excluded by the Daubert case.

Why would they do that?

It seems a curious statement to make, particularly if the expert has been around long enough to have been challenged on multiple occasions in litigation across the country.  Diligent counsel will always locate and review an opponent’s expert’s website, if one exists.  If the expert maintains that he or she has never been excluded on such grounds, defense counsel would naturally ask if that fact were still true. If so, the required follow up question becomes:  “If you’ve not been excluded on Daubert grounds, on what grounds have you been excluded?”

Recently, we deposed an expert who made such a representation on his website.  However, after spending less than five minutes on Westlaw, we discovered that he had been excluded in not one but three reported decisions.  Note that these were decisions that were on Westlaw, and these findings may not have included unreported exclusions or those which occurred at the trial court level that were never appealed.  One such exclusion came from the very first case in which the expert had offered opinions.  At the deposition, we naturally confronted the expert with these three opinions and he claimed not to know of them.  How is that?

Sure, two of the opinions were more than a decade old, but the third was from 2011 (and in that case, the trial court had excluded the expert, later granted a motion for new trial based on the belief that the exclusion was improper, and ultimately earned a reversal from the Court of Appeals because the expert’s opinions had been proven to be false by some properly admitted trial testimony).

How could someone not know that?  Well, maybe the expert simply received a call from the lawyer who hired them noting that the case had settled or otherwise resolved, and that lawyer felt it unnecessary to reveal the full story. But how could an expert elect to make that representation on his or her website and then not track whether or not that was true?

We shouldn’t object too much, as it’s always fun to hand an expert a court opinion he or she has never seen before.

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