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Using an Expert Witness in Civil Litigation
Expert witnesses are witnesses that have specific knowledge or experience in a particular area beyond what a normal lay person would have. They are generally used to help juries or judges decide factual questions that a person without specialized training in that area would have trouble determining.
Examples of cases where expert witnesses are frequently used include cases that require medical opinions to determine causation and damages, cases that may require an engineer to testify about how a product was or should have been manufactured, and cases where an expert is necessary to establish the standard of care owed to a plaintiff such as in professional negligence lawsuits.
Admissibility of Expert Testimony
Expert testimony in Colorado courts is governed by Colorado Rule of Evidence (“C.R.E.”) 702. In particular, the rule provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Accordingly, a witness qualified to testify as an expert based on her specialized knowledge, may render testimony in the form of an opinion. For example, a medical expert in a personal injury case may testify:
“Based on my expertise and specialized training in the medical field, it is my opinion that the Defendant breached the standard of care owed to the Plaintiff while performing surgery and was negligent in using outdated surgical methods.”
This is in contrast to lay witnesses that generally can only testify to factual observations and cannot render opinions where the opinion is beyond the scope of common, everyday experiences.
Importantly, there are no requirements that a witness have a certain number of degrees in order to render expert testimony; instead, all that is necessary for a witness to be qualified as an expert is to demonstrate that she has specialized knowledge in a particular area. Accordingly, under some circumstances it may be difficult determine whether a witness is technically an expert witness – for example, a witness with 30 years of experience laying asphalt testifying about sub-base and proper asphalt laying methods or a drywaller discussing methods of putting up drywall to decrease the risk of a house developing mold.
While most people have general everyday awareness of asphalt and drywall, the testimony of these witnesses is likely beyond a person’s everyday experience and, accordingly, would qualify as expert testimony. Although there is no bright line test for what kind of testimony counts as expert testimony, generally speaking, if the witness is going to testify or give an opinion on something that is beyond the experience of an ordinary layperson, that witness is giving expert testimony.
Qualifying a Witness as an Expert
While C.R.E. 702 indicates what constitutes expert testimony and what form it may be given in, Colorado case law has determined the necessary requirements to qualify a witness as an expert. In particular, when determining whether a witness is qualified to render expert testimony, the court should look to:
(1) the reliability of the scientific principles used by the witness;
(2) the qualifications of the witness; and
(3) the usefulness of the testimony to the jury.
People v. Shreck, 22 P.3d 68, 70 (Colo. 2001). Importantly, there is no set formula for establishing that a witness is qualified to render expert testimony. As C.R.E. 702 broadly provides, a witness may be qualified as an expert based on “knowledge, skill, experience, training, or education.”
Further, the techniques and reasoning used by a witness in rendering an expert opinion must be “grounded in the methods and procedures of science and thereby reliable.” Estate of Ford v. Eicher, 250 P.3d 262 (Colo. 2011). This reliability requirement is designed to draw a distinction between testimony which is purely speculative and testimony that is based on tested methods and techniques that produce reliable results. The Colorado Supreme Court has enumerated several factors courts should look to in determining reliability in Estate of Ford v. Eicher, P. 3d at 267-68.
Lastly, the testimony must have some usefulness to the jury. This is a relatively low bar and as long as the expert testimony makes a fact at issue in the case more or less probable, or will help the jury to understand a fact at issue, this requirement will likely be satisfied.
Disclosure of Expert Witnesses during Discovery
One reason parties should determine early on in a case if expert testimony will be necessary is that there are different disclosure requirements during discovery for expert witnesses and lay witnesses. If these disclosure requirements are not met, especially with respect to expert witnesses, the court may not allow your expert testify which can be devastating to a case and could result in dismissal or a directed verdict in the other party’s favor.
During discovery, for lay witnesses, only their names and the general topics they are expected to testify to need to be disclosed. In contrast, expert witnesses much more rigorous disclosures, including a description in detail of what they will be testifying to and what opinions they will be rendering at trial.
Colorado Rule of Civil Procedure (“C.R.C.P.”) 26 specifically governs discovery during civil litigation and covers what must be disclosed for expert witnessed. Under the rule, there are two types of expert witnesses:
–Retained experts: which are experts specially employed to provide expert testimony
–Non-retained experts: which are experts that are not specially employed to provide expert testimony
The distinction can be confusing but, in general, if an expert is specifically hired to review and give an opinion on the facts of the case then that witness is a retained expert. In contrast, if an expert is going to be subpoenaed or called to testify based on factual events they witnessed first-hand or their actual involvement in the underlying claim, such as treating physicians for a personal injury case, then that witness is a non-retained expert. See Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011).
For retained experts, C.R.C.P. 26(a)(2)(B)(I) requires an expert report to be disclosed containing:
-a complete statement of all opinions to be expressed and the basis and reasons therefor;
-a list of the data or other information considered by the witness in forming the opinions;
-references to literature that may be used during the witness’s testimony;
-copies of any exhibits to be used as a summary of or support for the opinions;
-the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years;
-fee agreement or schedule for the study, preparation and testimony;
-an itemization of the fees incurred and the time spent on the case, which shall be supplemented 14 days prior to the first day of trial; and
-a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
In contrast, a non-retained expert only needs to disclose:
-a complete description of all opinions to be expressed and the basis and reasons therefor;
-a list of the qualifications of the witness; and
-copies of any exhibits to be used as a summary of or support for the opinions.
See C.R.C.P. 26(a)(2)(B)(II).
Timing of Expert Disclosures during Discovery
Importantly, disclosure of expert witnesses must be done at least 126 days before trial for the plaintiff, and, for the defendant, 98 days before trial or 28 days after the plaintiff’s disclosures, whichever is later. C.R.C.P. 26(a)(2)(C). Notably, correct disclosure of expert witnesses is critical in the progression of a case, especially for retained experts since their testimony is limited to what is disclosed in the expert report. If the expert report for a retained expert is not done correctly or doesn’t incorporate enough information, the expert’s testimony could be severely limited at trial which could be detrimental to that party’s case. Moreover, if a witness is not disclosed as an expert at all she will not be allowed to give expert testimony which can be highly damaging and usually dispositive for a case where expert testimony is necessary to establish or defend against liability.
© 2016 J.D. Porter, LLC; Jordan Porter. Denver, Colorado.