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Chapter
10 Stating Opinions and Conclusions
in a Defensible Manner Steven
Babitsky, Esq. The main reason an expert is involved in a case is to state
her opinion. The principal reason
an expert writes a report is to communicate that opinion.
The opinion must be communicated effectively and must be expressed in a
defensible manner. The authors
recommend the following. ·
Stating all opinions clearly, explicitly, and with confidence. ·
Using the magic words “based upon a reasonable degree of
(medical, engineering, legal, accounting, jewelry appraisal, or other field)
certainty” or “based on a reasonable degree of (medical, engineering, legal,
accounting, jewelry appraisal, or other field) probability” when expressing
the opinion in the report. ·
Avoiding hedge words, such as “it seems,” “I think,” and
“I believe” when expressing opinions in the expert report. ·
Stating the reasons that justify the opinion in concise
bullet-point format. ·
Avoiding expressing net opinions; that is, bare conclusions
without supporting justification. ·
Stating all of the opinions the expert expects to express at
trial. ·
Documenting a detailed and reliable methodology so that the report
will not be challenged under Daubert. The reason an expert report is prepared is so that the
expert can express her opinion(s). These
opinions should be stated clearly, explicitly, and confidently.
For expert opinions to be admissible in most civil cases, the expert
generally must believe that it is more likely than not that her opinion is
correct (51% or more certainty). There
are certain “magic words” that are commonly accepted as expressing the idea
that the expert is 51% or more certain of her opinion.
These include the expressions “based upon a reasonable degree of
(medical, engineering, legal, accounting, jewelry appraisal, or other field)
certainty” and “based on a reasonable degree of (medical, engineering,
legal, accounting, jewelry appraisal, or other field) probability.”
It is good practice to use one of these phrases when stating an expert
opinion in a report. Hedge words, such as “it
seems,” “I think,” and “I believe,” should be avoided.
Such words suggest that the expert does not have confidence in her
opinion. Failure to state opinions
clearly and with confidence will make the report and opinion vulnerable to
attack on cross-examination and could possibly result in the report being
stricken by the judge. Example 10.21:
“Could” and “possibility” insufficient to establish proof by a
preponderance of the evidence Perkins v.
Entergy Corporation, 756 So.2d 388 (La.App. 1 Cir.,1999) This case dealt with a flash fire at an air
separation facility. The expert
Schmidt concluded in his report: [D]uring highly abnormal pipeline operating
conditions, which occurred during the early hours of April 6, 1994,
circumstances could have developed
which caused the movement of metallic particles through the piping network [of
the ALAC facility]. Therefore, the
potential availability of metallic particles within a piping system and the
likelihood of particle impact or frictionally induced ignition becomes a statistical
possibility. (Emphasis added.) The
court found the language on causation too indefinite and stated: This conclusion is clearly insufficient to establish
cause in fact, which requires proof by a preponderance of the evidence.
See Dabog. 625 So.2d at 493.
One must prove what probably happened as opposed to what “could” have
happened and what is a “statistical possibility.” Piascyk v. City
of New Haven, 64 F. Supp2d.19 (D.Conn. 1999) This statement is too vague to support a finding that
plaintiff is significantly restricted in his ability to carry compared to the
average person. See
Colwell, 158 F.3d at 644 (testimony that plaintiff could not lift “very
heavy objects” did not support a finding of substantial limitation). Report
States: Although Buildem Engineering had no direct
contractual responsibility for safety, Mr. Donnelley did recognize the hazard.
It is true that Mr. Donnelley told Mr. First, the project engineer, of
the danger he saw. I feel Mr. First should have responded. He should have advised Mr. Williams and verified that
corrective action resulted. All
engineering societies exhort members to hold safety paramount. Resulting
Cross-examination: Q. When you say in your report, “he should have
advised Mr. Williams” who are you referring to? A. Mr. First. Q. Do you know what corrective action should have been
taken? A. Yes. Q. Do you specify the action in your report? A. Well. . .I discuss that on page 7, but I don’t
detail it. Q. So you did the same thing Mr. First did? A. Huh? Q. You knew what should have been done, but never told
anyone? A. I explained myself, maybe I could have expressed
myself better. Q. You don’t know how many engineering societies
there are, do you? A. Well, it’s over 50 but. . .no I don’t know. Q. So, when you wrote “all engineering societies
exhort members to hold safety paramount” you just misspoke? A. I should have been more precise with my language. Q. Agreed. Comment: The
expert’s opinions need to be stated clearly and explicitly.
This was not done in this example. A
clearer and more explicit way to state the expert’s opinions in this case
would be as follows: It is my opinion, based upon a reasonable degree of
engineering certainty, that Mr. First failed to follow fundamental safety
practices by failing to advise Mr. Williams of the danger at the site and
failing to verify that corrective action took place. Example 10.24:
Failure to state opinion confidently: “cannot be ruled out” Report States: Therefore, based upon the foregoing and a reasonable
degree of engineering certainty, it is our opinion electrical failure cannot be
ruled out as a possible cause of loss. Resulting Cross-examination: Q. So, your opinion is that electrical failure caused
the loss? A. No, that’s not what I said. Q. You qualified your opinion, correct? A. Yes. Q. In fact, you used three qualifiers in your opinion? A. Three? Q. A reasonable degree of engineering certainty would
be what expressed in a percentage form? A. 51 percent. Q. Your use of the term “possible” indicated less
than 51% certainty, correct? A. Yes. Q. And, the phrase “cannot be ruled out” even less
certainty. A. That’s true. Q. Would it be fair to say that there were several
potential causes of the loss here? A. Yes. Q. In fact, how many potential causes of the loss
could you “not rule out”? A. Approximately seven. Q. You’re not even certain about this, sir? A. Well, there are various degrees of certainty. Q. Would it be fair to say that you cannot truthfully
testify with a reasonable degree of engineering certainty as to what in fact
caused the loss? A. Yes, that’s true. Comment:
Not only is this opinion highly vulnerable to cross-examination, the opinion may
also be vulnerable to legal challenges. Therefore, based upon the foregoing and to a
reasonable degree of engineering certainty, it is our opinion that electrical
failure is more likely than not the cause of this loss. Report
States: It would seem to me, therefore, that the treatment
rendered from August 31, 1998 to present was not reasonable or necessary. Resulting
Cross-examination: Q. Are you certain that the treatment rendered from
August 31, 1998 to present was not reasonable or necessary? A. Yes. Q. Sir, how old are you? A. 53, but I don’t see how that is relevant,
counselor. Q. Why didn’t you say “it would seem to me” I am
53 years old? A. Because I know precisely how old I am. Q. As opposed to your opinion on the reasonableness of
the treatment when you said, “it seems to me it was not reasonable or
necessary”? Comment: The
weight the expert’s opinion will likely be given is greatly lessened by his
inclusion of the “it would seem to me” language. This language suggests uncertainty. This report would likely be given more weight had the expert
used confident language to express his opinion: It is my opinion, based upon a reasonable degree of
medical certainty, that the treatment rendered from August 31, 1998 to present
was neither reasonable nor necessary. I
base this opinion on the following: Example 10.26:
“I do not think” language lessens weight report will be given Report States: I do not think that the revision of the total knee
arthroplasties that took place following his accident of 2/7/94 were
necessitated by the accident itself. Comment: This
report would have been far better had it used more confident language: It is my opinion, based upon a reasonable degree of
medical certainty, that the revision of the total knee arthroplasties that took
place following his accident of 2/7/94 were not necessitated by the accident
itself. I base this opinion on the following reasons. 1.
… Example 10.27:
“I do not believe” language lessens weight report will be given Report States: I don’t believe that the laminectomies at T5 to T6
caused any significant increase in Mr. Collins’s complaints. Comment: The
“I don’t believe” language takes away from the expert’s opinion. It is my opinion, based upon a reasonable degree of
medical certainty, that the laminectomies at T5 to T6 did not cause any
significant increase in Mr. Collins’s complaints. I base this opinion on the following reasons: 1.
… Example 10.28:
“The following conclusions can be made” Report States: Based
on the foregoing, and to a reasonable degree of engineering certainty, the
following conclusions can be made. Comment: This expert’s conclusions would be more persuasive if the “can be
made” language was replaced with more confident language. Based
on the foregoing, and to a reasonable degree of engineering certainty, I have
made the following conclusions: 1.
… Example 10.29: “It can be argued”: expert now an advocate? Report States: Resulting
Cross-examination: Q.
You testified that “it can be argued that Dr. A should have never been
doing HIV testing/interpretation in the first place, based on his admitted lack
of experience”? A.
Correct. Q.
It could also be argued that he should have been doing the HIV testing,
correct? A.
Yes. Q.
Thank you, no further questions. Comment: The “it can be argued” language should not have been used.
This language may make the expert either appear to be an advocate or
unsure of himself. Better language
follows. It
is my opinion, based upon a reasonable degree of medical certainty, that Dr. A
breached the standard of care in providing Mr. Jones HIV testing and
interpretation. Dr. A had no training or experience in HIV testing and HIV test
interpretation. The opinions expressed in the report should be supported
with reasons that justify them. When
the opinions are so supported, the weight that will likely be given to the
expert’s report will be increased significantly. If possible, the supporting reasons should be listed as a
concise bullet-point list. Consider
the following examples, which clearly and explicitly state the reasons for the
experts’ opinions. Report
States: It is my opinion, based upon a reasonable degree of
medical certainty that S.B., M.D. provided markedly substandard care in: (a.)
Embarking on a course of very prolonged, poorly monitored lytic therapy in a
case which required treatment by surgical thrombectomy because of the sensory
and motor changes present; (b.)
Having started therapy for whatever reason, failing to use an aggressive
fragmentation, high concentration, directed lytic agent infusion; and for some
reason starting and continuing therapy in a demonstrably non-essential,
currently and previously non-collateralizing profunda femoris artery while the
condition of the right foot and leg continued to deteriorate; (d.)
Continuing the infusion in a non-essential artery for 11 hours after the current
patient complaint began, before trying to clear the bypass graft of clot; (e.)
Failing to pursue established principles of lytic therapy, and/or failing to
observe the limitations, the indications and contraindications of the technique;
and (f.)
Failing to obtain adequate supervision of his performance from the surgeons in
an area of treatment he claims is beyond his ability to evaluate and conduct. It is my further opinion that because of each and all
of these incidents of failing to render care to a current medically acceptable
standard, Mr. B. unnecessarily suffered the loss of his right leg below the
mid-thigh. Comment: The
expert’s conclusions in this report are made more persuasive by the expert’s
inclusion of the reasons for his opinion. The
bullet-points make the report easy to read and even more persuasive. Example 10.32:
Reasons to support opinion stated Report States: The claimant sustained severe closed head injury with
persistent cognitive defects and post traumatic seizure disorder.
The symptoms are all causally related to the claimant’s last accident
on June 14, 1995. The reason they
are causally related are that the claimant sustained a head injury in the past.
However, he never had any seizures as a result of any prior injury.
Of note, one week following this last injury he suffered on the aircraft
he did sustain seizures and they were poorly controlled. Comment:
The expert’s conclusions in this report are made more persuasive by the
expert’s inclusion of the reasons for her opinion. Failure to state reasons for the expert’s opinion makes
the report less credible and may make it particularly vulnerable to legal
challenges. “An expert’s report
which offers only a bare conclusion—nothing more than a bottom line—is
insufficient to prove the expert’s point.”[1]
This is what is known as a net opinion.
Net opinions are inadmissible. Please
consider the following examples. Example 10.41:
Overly vague opinion insufficient Ohime v. Foresman, 186 F.R.D. 507 (N.D.Ind.,1999) In
this case, the proffered report of a psychiatric social worker, Nott, was found
to be deficient. The court stated: Mr. Nott’s second report still is deficient
under Rule 26(a)(2)(B). The report
states a summary of Ms. Ohime’s two meetings with Mr. Nott (arguably the data
or other information on which Mr. Nott relied in making his report), but it
contains only a three-sentence paragraph of vague conclusions as to his expert
opinion of Ms. Ohime’s condition. These
conclusory determinations are insufficient under Rule 26(1). Example 10.42:
Overly vague opinion insufficient Hemmen v. Atlantic City Medical Center,
758 A.2d 1145 (N.J.Super.L.,1999) This
was a medical malpractice case. The
court found the expert’s report an inadmissible
net opinion and stated: I
recognized that the expert may have been reporting that the medical community
understands that of the cases of drug induced sciatic nerve damage, negligence
is the most frequent cause. Such a
report, however, must rest upon the expert’s experience or upon textual
support. Connors
v. University Associates, 769 F.Supp.
578, 587 (D.Vt.1991) aff’d 4 F.3d
123 (2d Cir.1993). In the absence
of such a basis, the opinion of the relative frequency of negligent and
non-negligently caused damage would be an inadmissible net opinion, bereft of
any factual underpinning. Bank Brussels Lambert v. Credit Lyonnais,
2000 WL 1762533 (S.D.N.Y. 2000) The
court stated: The
Perkins Report is a one page report that states a conclusion and offers no
support for it. While it states
that the conclusion is based on the “review of the brokers’ reports and
borrowing base reports” it does not explain the rationale that led to the
conclusion nor does it set forth the testimony that will be provided at trial.
As a result, the amount of information provided in the Perkins Report is
not sufficient under Rule 26(a)(2)(B). Further,
the Perkins Report fails to state that it is responding to the Boothman Sherwin
Report. An expert who files a pretrial report and fails to mention
important information (for instance, that she conducted an out-of-court
experiment) does so at her peril. Opposing
counsel will argue that it was not adequately apprised of the basis for the
expert’s opinion and/or that the expert and counsel failed to supplement its
discovery responses. In Metropolitan Life Insurance Company v. Tomchik,[2]
the court found the expert’s report, which did specifically reveal an
out-of-court experiment, was legally sufficient. The court stated: In the instant case, although Lurwig’s report does
not specifically state that an out-of-court experiment was conducted, it is
apparent from the photographs and from the statement in the report that Lurwig
had made a model work piece, that Lurwig’s opinion was based, in part at
least, on the results of an experiment regarding kerf marks. In addition, the report makes very clear that it was
Lurwig’s expert opinion that the amputation of appellant’s thumb could not
have occurred in the manner described by appellant.
At trial, Lurwig did not change his opinion in this regard.
The fact that Lurwig conducted an experiment in forming his opinion
appears to be a nuance in his opinion, rather than the opinion itself.
The report was sufficiently clear to apprise appellant as to Lurwig’s
opinion and to present appellant with a reasonable opportunity to prepare a
defense against it.[3] The expert’s report should contain all of the opinions the expert expects to express at trial.
Failure to include all opinions may result in the preclusion of the
expert from offering at trial the opinions that were not included in the
expert’s report. Failure to
include all opinions may also be a subject of pointed cross-examination. Example 10.61:
Some opinions omitted from report Report States: This letter contains some of my opinions in the above
referenced matter. Resulting
Cross-examination: Q. You do have other opinions on this case which were
not contained in your letter, correct? A. Yes. Q. Why did you omit these opinions? A. I was asked to. Q. By counsel who retained you? A. Yes. Q. This was after you shared these opinions with her? A. Well, . . . yes. Q. So, these opinions are ones you and counsel decided
should not be shared with her honor and the members of the jury? A. I was just. . .. Q. Following orders? A. Completing my assignment. Q. Let’s go through these opinions and see why it
was decided that they should not be shared with the jury. Comment:
This language should be avoided because it can be made to appear as though the
expert is intentionally withholding some of his opinions. When expert reports are offered with conclusory statements
in lieu of the basis for the expert’s opinions, they are stricken and found to
be legally insufficient under Rule 26. Example
10.71: Conclusory determinations Ohime
v. Foresman, 186 F.R.D. 507 (N.D.Ind.
1999) The
proffered report of a psychiatric social worker, Nott, was found to be deficient
for being a conclusory determination. The
court stated: Mr. Nott’s second report still is deficient under
Rule 26(a)(2)(B). The
report states a summary of Ms. Ohime’s two meetings with Mr. Nott
(arguably the data or other information on which Mr. Nott relied in making his
report), but it contains only a three-sentence paragraph of vague conclusions as
to his expert opinion of Ms. Ohime’s condition.
These conclusory determinations are insufficient under Rule 26(1).[4] Example 10.72: Conclusory report inadmissible in Texas medical
malpractice case Hart v. Wright,
16 S.W.3rd 872 (Tex.App.-Fort Worth 2000) This was a Texas medical malpractice case.
The Medical Liability and Insurance Improvement Act contains expert
report writing standards and was enacted to curtail frivolous claims against
physicians and related healthcare providers.[5]
The court dealt with and rejected a written report in affidavit form. An expert report is defined as any report written by
an expert that provides a fair summary of the expert’s opinions as of the date
of the report regarding: (1) the
applicable standard of care; (2) the manner in which the care rendered by
defendant failed to meet the standard of care; and (3) the causal relationship
between that failure and the injury, harm, or damages claimed. Appellants
offered this written report of Dr. Maewal in affidavit form to comply with their
obligation under the Act: My name is Hrishi K. Maewal.
I am over the age of majority. I
have never been convicted of a felony or a crime of moral turpitude, and I am in
all things qualified to make this affidavit. I
am a physician licensed to practice medicine in the State of Texas. I
am currently practicing medicine and was practicing medicine on January 22,
1996. I
am board certified in Internal Medicine, Pulmonary Disease, Cardiology, and
Critical Care Medicine. I
examined Bobby Hart at Harris Methodist Fort Worth Hospital on January 23, 1996. Based
on the history obtained from the patient and his family members along with the
supporting evidence of laboratory evaluation which showed an elevated creatine
kinase of 1854 U/L, CK-MB 219.7 ng/ml and % relative index 11.9 at 10:41 a.m.
along with an EKG which shows an inferior infarction with Q-waves, in my expert
opinion, Mr. Hart was experiencing an acute myocardial infarction at
approximately 5:00 p.m. on January 22, 1996 while a patient in the emergency
room at Huguley Memorial Hospital. Based
on the above analysis, Dr. Wright, the treating physician at Huguley Memorial
Hospital, and Huguley Memorial Hospital departed from the acceptable standard of
care for the diagnosis, medical care, and treatment of a patient with an acute
myocardial infarction. Appellants
argue that even thought Dr. Maewal’s report does not include all of the
information required by section 13.01(r)(6), it nonetheless satisfies the
definition of an expert report. We
disagree because Dr. Maewal’s report does not address a standard of care,
deviation from that standard, or that a deviation from the standard caused
injury or damages. See id.
The report merely concludes that Mr. Hart demonstrated signs and symptoms
of a heart attack at a time and place with which Dr. Maewal had no connection.
For Dr. Maewal to qualify as an expert, the report had to show that he
had knowledge of the accepted standards of care for the diagnosis, care and
treatment of the injury involved, how the applicable standard was breached, and
how the alleged breach contributed to Appellants’ injuries or damages.
See id. §§ 13.01(r)(5), (6).
While a party need not marshal all its proof, a good faith effort in
preparing an expert report must, at a minimum, attempt to incorporate the three
requirements found in section 13.01(r)(6).
Here, the conclusory report is not the good faith effort required by the
statute. We overrule issue one.[6] Example 10.73:
No reasons stated for this conclusion Report States:
Care by paramedics and intermediate EMS staff was
appropriate. Resulting
Cross-examination: Q. Your conclusion in your report is that care by the
paramedics and EMS staff was appropriate? A. Yes. Q. Where in your report do you explain your reasoning
and provide facts and the scientific rationale for this conclusion? A. It’s not in there. Q. So, you are asking this jury to just accept this
naked conclusion without any basis in fact or science? Comment: Conclusions
without supporting reasoning are not persuasive.
Conclusions should always be supported with reasoning. Care by paramedics and intermediate EMS staff was
appropriate. I base this conclusion
on the following... Example 10.74:
Conclusion without support insufficient under Rule 26 Bank Brussels
Lambert v. Credit Lyonnais, 2000 WL 1762533 (S.D.N.Y. 2000) The court rejected a one-page conclusory report and
stated: The Perkins Report is a one page report that states a
conclusion and offers no support for it. While
it states that the conclusion is based on the “review of the brokers’
reports and borrowing base reports” it does not explain the rationale that led
to the conclusion nor does it set forth the testimony that will be provided at
trial. As a result, the amount of
information provided in the Perkins Report is not sufficient under Rule
26(a)(2)(B). Further, the Perkins
Report fails to state that it is responding to the Boothman Sherwin Report.[7] Example 10.75:
Net opinion inadmissible Hemmen v.
Atlantic City Medical Center, 758 A.2d 1145 (N.J.Super.L. 1999) This was a medical malpractice case.
The court found the expert’s report an inadmissible net opinion and
stated: I recognized that the expert may have been reporting
that the medical community understands that of the cases of drug induced sciatic
nerve damage, negligence is the most frequent cause.
Such a report, however, must rest upon the expert’s experience or upon
textual support. Connors
v. University Associates, 769 F.Supp.
578, 587 (D.Vt.1991) aff’d 4 F.3d 123 (2d Cir.1993). In
the absence of such a basis, the opinion of the relative frequency of negligent
and non-negligently caused damage would be an inadmissible net opinion, bereft
of any factual underpinning.[8] The courts continue to reject reports where the expert’s
opinion is expressed vaguely, equivocally, or with insufficient certainty. Example 10.81:
“Could” and “possibility” Perkins v.
Entergy Corporation, 756 So.2d 388 (La.App. 1 Cir. 2000) The court dealt with the case of a flash fire at an
air separation facility. The expert
Schmidt concluded in his report: [D]uring highly abnormal pipeline operating
conditions, which occurred during the early hours of April 6, 1994,
circumstances could have developed
which caused the movement of metallic particles through the piping network [of
the ALAC facility]. Therefore, the
potential availability of metallic particles within a piping system and the
likelihood of particle impact or frictionally induced ignition becomes a statistical
possibility. (Emphasis ours.)[9] The court found the language on causation too
indefinite and stated: This conclusion is clearly insufficient to establish
cause in fact, which requires proof by a preponderance of the evidence.
See Dabog. 625 So.2d at 493.
One must prove what probably happened as opposed to what “could” have
happened and what is a “statistical possibility.”[10] Example 10.82:
Vague report cannot support finding for plaintiff Piascyk v. City
of New Haven, 64 F.Supp.2d 19 (D.Conn. 1999) The court dealt with an ADA case filed by a police
officer. The expert report was
written by a physician, Shine. In support of his claim that he is substantially
limited with regard to carrying, plaintiff has offered only Dr. Shine’s
statement in his report to the New Haven Workers’ Compensation Division that
plaintiff would have difficulty “carrying heavy loads….”
(Shine Report, Plaintiff’s Exhibit 11.)[11] The
court rejected the indefinite language “carrying heavy loads” and stated: This statement is too vague to support a finding that
plaintiff is significantly restricted in his ability to carry compared to the
average person. See
Colwell, 158 F.3d at 644 (testimony that plaintiff could not lift “very
heavy objects” did not support a finding of substantial limitation).[12] Experts should be aware that their reports will be closely
scrutinized under the Daubert doctrine
to see if they are not only relevant but reliable.
[See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.2786 125 L.E.2d 469 (1993); General
Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 517, 139 L.E.2d 508
(1977); and Kumho Tire Co. Limited v.
Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.E. 2d 238 (1999).] Under the Daubert
line of cases the judge will act as a gatekeeper to screen out and exclude
unreliable expert testimony and reports. The
judge will consider several factors, including: 1.
whether the theory or technique used by the expert can be, and has been,
tested, 2.
whether the theory or technique has been subjected to peer review and
publication, 3.
the known or potential rate of error of the method used, and 4.
the degree of the method’s or conclusion’s acceptance within the
relevant scientific community. An
expert report will survive Daubert
challenges if the report is based upon reliable methodology and if this
methodology is spelled out clearly in the report. Please consider the following examples. Example 10.91:
Minimal examination, report stricken Minisan v.
Danek Medical, Inc., 79 F.Supp. 2d 970 (N.D.Ind. 1999) This was a pedicle screw medical device case.
The plaintiff offered the report of Dr. Lance Yarus, an osteopath, as her
only evidence. The court rejected the report and proposed testimony.
The court stated: Dr. Yarus states that he arrived at his conclusions
based solely on an examination of Minisan’s numerous medical records.
He apparently never examined her, met with her, or even spoke to her.
Neither did he examine or test the TSRH device.
Dr. Yarus concludes that “both surgical interventions were the
proximate cause of the non-unions and subsequent development of pain.” (Def’s Mem. In Supp., Ex. 0 at 4.) He also concludes that Minisan’s continued disability is
directly related to the metallic devices. (Id.)
Under Daubert, the expert
“must explain precisely how [he] went about reaching [his] conclusions and
point to some objective source… to show that [he] has followed the scientific
method…” Daubert v. Merrell Dow Pharm., 43 F.3d 1311, 1317 (9th
Cir.1995) (Daubert II).
Similar to his reports provided in other bone screw cases, Dr. Yarus has
failed to provide any explanation as to how he reached his conclusions.
See McCollin, 50 F.Supp.2d
1119, 1126-27; Hartwell, 47 F.Supp.2d
703, 712-13; Pulice, 199 WL 613370 at
* 5-9; Moses v. Danek Medical, Inc.
No.CV 95-512, 1998 WL 1041279 at *7 (D.Nev. Dec. 11, 1998). Dr. Yarus has not met the standard set forth in Daubert. The court therefore concludes that Dr. Yarus’ opinion is
simply insufficient to create a material fact issue for trial with respect to
the issue of causation.[13] Example 10.92: Economic professor’s review of General Motors’
business plan reliable Voilas v.
General Motors Corp., 73 F.Supp. 452 (D.N.J. 1999) The court dealt with an economics professor
testifying as to the employer’s financial plans regarding its decision to
sell, close, or keep its automobile plant open.
The court held that the expert’s report was not unreliable and stated: Turning to GM’s arguments, this Court disagrees
that Dr. Tinari’s liability report is unreliable because he employed no
particular methodology, but merely reviewed GM’s own analyses of disposition
plans for the Trenton plant. Indeed,
an experienced economist’s clarification and summary of a large
corporation’s business plans could certainly prove helpful to the average
juror who presumabl[y] lacks such experience in and knowledge about complex
financial matters, even if doing so does not require employing any particular
methodology but simply a straightforward review of the corporation’s data. See Downing, supra, 753
F.2d at 1235 (quoting Federal Rule of Evidence 702 and recognizing that “[t]he
touchstone of Rule 702…is helpfulness of the expert testimony, i.e.,
whether it ‘will assist the trier of fact to understand the evidence or to
determine a fact in issue.’”). In
this context of reviewing and summarizing GM’s business plans, the Court is
satisfied that Dr. Tinari’s report is sufficiently reliable, entitling him to
testify as to his review and summary of GM’s financial analyses. Example 10.93: Causation opinion based on anecdotal case reports rather
than epidemiological studies unreliable Brumbaugh v.
Dandot Pharmaceutical Corporation, 77 F.Supp.2d. 1153 (D.Mont. 1999) The court stated: The challenged expert, Dr. Iffy, opines that he
believes Parlodel has caused a chronic seizure condition in plaintiff.
To support his opinions, he relies not on epidemiological studies but on
anecdotal case reports and his theory that Parlodel can act as a vasospastic
agent instead of a vasodilator.[14] Dr. Iffy recognizes the insufficiency of reliance on
case reports or ADE’s to establish causation when he states that controlled
studies are necessary to show that a particular drug causes an event or a
particular reaction. Yet, he has
developed a hypothesis that plaintiff’s seizure and other seizures reported in
ADE’s and case reports were caused by Parlodel-induced vasospasms.
He admits that it is “simply a hypothesis” which has not been tested
and may be impossible to test.[15] Dr. Iffy is, in essence, opining that plaintiff’s
seizures are due to Parlodel because he believes that.
He admits that this causation opinion is “simply a hypothesis.”
Since they lack the rigor imposed by scientific methodology, Dr. Iffy’s
opinions do not have the evidentiary reliability to be admissible and are
therefore excluded pursuant to Fed.R.Evid. 702 and 703.[16] Example 10.94:
Inability to replicate or explain data, testimony barred Koch v. Shell
Oil Company,
49 F.Supp. 2d 1262 (D.Mont. 1999) This case involved the impact that the feed additive
Rabon had on a dairy herd and the farmer and his family.
The court rejected the testimony of Dr. Ruth and stated: Thus, the court finds that all four of the Daubert
factors weigh against the admissibility of Dr. Ruth’s testimony.
In particular, the court is extremely concerned with the scientific
validity and reliability of the testing performed by Dr. Ruth, as discussed
above in relation to the first Daubert
factor. Dr. Ruth’s testimony
indicates that he himself cannot reconstruct the calculations that he performed
to reach his results. Since Dr.
Ruth is unable to reconstruct that information and believes that there are
mistakes in his calculations, the court is unable to find that the results of
his testing were valid and reliable. Therefore,
the court concludes that Dr. Ruth’s testimony is inadmissible pursuant to
Fed.R.Evid. 104(a) and 702.[17] Example 10.95:
Ignorance of key facts, report stricken United
Phosphorus Ltd. V. Midland Fumigant, Inc., 173 F.R.D. 675 (D.Kan. 1997) The court rejected the report of Dr. Richard Hoyt,
explaining: The court determines, based on the foregoing, that
Hoyt violated a fundamental principle of economics when he failed to consider in
his report the actions of Midland in estimating a value for the Quick-Phos trade
name. Hoyt did not read any of the
depositions (notably of Fox, Lynn, or Estes) before he rendered his report.
Consequently, he was required to evaluate the Quick-Phos trademark with
little knowledge about the facts of the case, and no knowledge about the
underlying admissions from Midland’s president and sales managers.
The court finds that such ignorance of undisputed facts violates Daubert’s requirement that an expert report and opinions must be
based on “scientific knowledge.”[18] Example 10.96:
General report inadmissible, fails Daubert
test United States
Equal Employment Opportunity Commission v. Rockwell International Corporation,
60 F.Supp.2d 791 (N.D.Ill. 1999) The court dealt with the expert report of a
vocational counselor, Brethauer. The
court first found that the report failed the reliability requirements of Daubert. He performed analyses he would not normally perform.
He included analyses that he would not normally include.
He included calculations upon which he did not rely and did not fully
believe should be followed. He
relied on materials, reports and summaries given to him by counsel, and failed
to verify the information from reliable, independent sources.[19]
The
court went on to discuss the fatal lack of specificity of the report. Additionally, the court concludes that Brethauer’s
report, like the report in Zarzycki,
is too general to be of use to the jury. Like
the expert in Zarzycki, Brethauer
failed to take into account the specific job market in the geographical area to
which the Claimants had access. Brethauer’s
report also fails to contain evidence on the approximate number of actual jobs
from which the Claimants could be excluded because of the perceived impairment.
Instead, Brethauer analyzed job titles contained in the DOT. Without any evidence of the number of jobs contained in each
job title, Brethauer’s report supplies no information from which a jury could
determine the number of jobs from which the Claimants were considered excluded.
Accordingly, the court holds that the report fails under Daubert’s
relevancy requirement.[20] Example
10.97: Untested hypothesis, testimony barred Oddi v. Ford
Motor Company,
234 F.3rd 136 (C.A.3, Pa. 2000) This was a crash-worthiness case in which the
plaintiff was catastrophically injured when his truck struck a guard rail and
bridge abutment. The expert, Noettl,
was an engineer retained to testify about defective design. In his preliminary report, Noettl opined that the
truck Oddi was driving rode up on the guard rail because of the failure of the
left side of the front bumper…Had the bumper not significantly deformed back
and inward the vehicle would have been deflected by the guard rail. Had
the bumper and the floor board been properly structurally designed the vehicle
would not have gone over the guard rail and the occupant compartment would not
have been intruded by the guard rail and concrete barrier. App. At 104-105. After
he reviewed the deposition of defense expert Donald Edelen, Noettl submitted an
amended report, dated December 4, 1997. In
it he stated: It is my opinion that [Ford] should have warned
[Grumman] of the fact that the front bumper on their chassis is for decorative
trim only and will not offer protection to the body and occupant in a collision.
As a result of the design of the chassis and bumper, the front wheels of
the vehicle become exposed in foreseeable accident situations.
Ford should have specifically warned that the bumper was extremely weak
due to the fact that it had no backing plate or brackets for reinforcement and
because it had holes in the bumper placed immediately adjacent to the outside
where the bumper mounted to the chassis.[21] The
court rejected his proposed testimony and stated: Noettl posited two hypotheses.
His first hypothesis was that the front bumper’s design should have
included either bracketry or a brace system that would have increased the
bumper’s rigidity, prevented the truck from ramping, and deflected the vehicle
back onto the roadway after impact with the guard rail.
His second hypothesis was that thicker and/or ribbed metal on the
flooring of the cab would have retained the integrity of the cab.
However, Noettl quite candidly testified that he never tested either
hypothesis. Consequently, he has
not satisfied the first of the Daubert
factors. The Supreme Court has
explicitly instructed, “[o]rdinarily, a key
question to be answered in determining whether a theory or technique is
scientific knowledge that will assist the trier of fact will be whether it can
be (and has been) tested.” Daubert at 593, 113 S.Ct. 2786. [Emphasis
added.][22]
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[1] SMS Systems Maintenance Services v. Digital Equipment Corporation,
188 F.3rd11 24 (1999). [2] 732 N.E.2d430 (Ohio App. 7
Dist., 1999). [3] At 782, 783. [4] At 23. [5]
Tex.Rev.Civ. Stat.
Ann. Art. 49501 Sec. 13.01(d)1. [6] At 876, 877. [7] At 2000. [8] At 280. [9] At 407. [10] At 407. [11] At 29. [12] At 29. [13] At 976, 977. [14] At 1155. [15] At 1156, or 1157. [16] At 1157. [17] At 1269. [18] At 683. [19] At 797. [20] At 797, 798. [21] At 146, 147. [22] At 158.
Writing and Defending Your Expert Report
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The Step-by-Step
Guide with Models
©
2002
SEAK Inc.
James J. Mangraviti, Jr., Esq.10.1 Executive
Summary
10.2 State
Opinions Clearly and with Confidence
Example 10.22:
Overly vague opinion insufficient
This case dealt with an ADA case filed by a police
officer. The expert report was
written by a physician, Shine. In support of the plaintiff’s claim that he was
substantially limited with regard to carrying, the plaintiff offered only Dr.
Shine’s statement in his report to the New Haven Workers’ Compensation
Division that plaintiff would have difficulty “carrying heavy loads….” The
court rejected the indefinite language “carrying heavy loads” and stated:Example 10.23:
Failure to be clear and explicit
Example 10.25:
“It would seem to me” language takes away from opinion
1.
…
Thus
it can be argued that Dr. A should have never been doing HIV
testing/interpretation in the first place, based on his admitted lack of
experience.10.3 State
Reasons for Opinions
Example 10.31:
Detailed reasons to support opinion provided in bullet-point list
(c.)
Failing to recognize that the previously angiographically demonstrated major
collateral, the DBrLCF was obstructed and that Mr. B.’s leg and foot were not
in the same condition as before by-pass surgery and now had insufficient
collateralization to maintain viability; 10.4 Net
Opinions
Example
10.43: One-page conclusory report insufficient under Rule 26(a)(2)B
10.5 Failure
to Disclose Fact/Experiment in Report
10.6 State
All Opinions to Which Expert Will Testify
10.7 Conclusory
Statements
10.8 Vague,
Equivocal, and Uncertain Reports Inadmissible
10.9 Documenting
a Reliable Methodology
It
is also my opinion that the floor board allowed intrusion by the guard rail and
possibly the concrete barrier into the occupant compartment in the area near the
brake pedal and where the driver’s feet and legs would be located. This intrusion was a direct cause of the injuries to Mr. Oddi.