This article by
Bob Ambrogi, of
IMS Expert Services, rhetorically asks the question of whether an
'expert' is required in order to sue another 'expert' because of his
sworn testimony. In this particular case an expert was hired to help
prove claims of wrongdoing by a neighboring industrial complex. Being
declared qualified as an 'expert' varies from state to state, but it
usually requires extensive documented professional experience, and/or
an advanced college degree, and/or professional registration as a result
of special testing. I, for example, would likely not qualify to serve
as an expert witness in a trial. I am, however, the world's foremost
expert on my own opinion of things. Like it or not - and many people
believe it to be a form of acceptable
payola - expert testimony is a major component of liability and
performance of duties type litigation. This is a quick read, and you
might be surprised at the conclusion. The take-away lesson is two-fold:
Give careful consideration regarding whether you want to be paid as
an expert witness, and don't necessarily be intimidated by another party's
expert even if you yourself are not a qualified expert. It usually boils
down to who has the best lawyers and what judge you appear before.
periodically sends me e-mails that highlight recent key court cases
that can significantly affect the effectiveness of expert testimony,
both for the plaintiff and for the defendant. I have no official affiliation
with them other than to gratefully accept an invitation to repost articles
I consider beneficial to RF Cafe visitors.
Robert Ambrogi on April 04, 2014
Robert J. Ambrogi is a Massachusetts lawyer who represents
clients at the intersection of law, media and technology. A
news media veteran, he is the only person ever to hold the top
editorial positions at the two leading national U.S. legal newspapers,
the National Law Journal and Lawyers Weekly USA. He
is also internationally known for his writing and blogging about
the Internet and technology.
Editor’s Note: The expert referenced in this article is not
affiliated with IMS ExpertServices.
If you sue an expert witness for malpractice, do you need expert
testimony to prove your case?
The question may sound circular, but it was one of first impression
when it was decided earlier this month by the Oklahoma Supreme Court.
The court's answer, while definitive, was also narrow.
The plaintiffs in this case, Jackie and Gene Ellison, had hired the
expert, Michael Campbell, to provide testimony in an earlier case they
had filed against an oilfield waste disposal facility. In that earlier
case, filed in 1999, they alleged that the facility was responsible
for polluting the groundwater on their property and that the polluted
water was responsible for the death of their cattle.
Campbell, a hydrogeologist, was hired to conduct tests and drill
monitoring wells in order to establish empirical data sufficient for
him to render a scientifically supportable expert opinion. After collecting
samples over a period of several years, he prepared his expert report,
which was submitted to the defendants.
A Deposition Gone Bad
In 2006, in a deposition that lasted three days, the defendants'
lawyers grilled Campbell about his findings. According to the court's
description of what occurred in that deposition, Campbell repeatedly
made statements that discredited his own report.
At one point, for example, Campbell admitted that he did not know
whether he had followed certain protocols in sample testing. At another,
he pointed out significant calculation errors in his report. When defendants'
counsel asked him if he thoroughly researched industry knowledge in
regard to mud pits and their relationship to leakage and pollution,
he responded that it was "difficult to say" and that "serendipity has
a lot to do with finding articles when you need them," according to
the court's opinion.
At the end of the first day of depositions, defendants' counsel asked
Campbell to verify some of his calculations and check errors in his
report. The next morning, when asked about these items, Campbell answered
that he had been too tired to go over his report, saying he was "a busy
person." According to the court's opinion, he then stated that the only
way he could be certain that all the charts in his materials were not
"riddled with errors" would be to go back and look at them.
At another point, when he was asked if the monitoring wells complied
with state and federal environmental standards, he said he did not know
because he had not read them. He further stated that the U.S. Environmental
Protection Agency would not accept his data as reliable.
The Expert is Sued
After settling that earlier litigation, the Ellisons sued Campbell,
alleging negligence, tortious breach of contract, and breach of contract
for his failure to provide them with a scientifically supportable report.
After a four-day trial, the jury returned a verdict for the Ellisons
Campbell filed a motion to set aside the verdict, arguing that the
Ellisons failed to establish their claim for breach of contract because
they never presented an expert in hydrogeology to counter his scientific
conclusions. The trial court denied the motion.
Campbell appealed to an intermediate appeals court, which sided with
him and reversed the trial court. The appeals court held that the Ellisons
should have been required to produce expert testimony to support their
claim. The Ellisons appealed that decision to the Oklahoma Supreme Court.
Substandard Performance was Clear
Normally, the Supreme Court said in its opinion, expert testimony
is required to establish a claim of professional negligence. But an
expert is not required to establish an element that "lies within the
common knowledge of lay persons."
In this case, Campbell's own statements "were sufficient to demonstrate
his substandard performance in preparing expert materials," the court
"Under these unique facts, it was unnecessary for the Ellisons to
present an expert witness," the court held. "The average, lay person
could most certainly conclude that Campbell had not performed the preparations
necessary to produce a viable product for the purpose of demonstrating
the existence and source of groundwater pollution in the [prior] proceedings."
The court was careful to explain that its holding was not intended
to open a door to suing experts whenever a case is lost. "This opinion
should not be read for the proposition that a losing party may recover
monies paid to an expert witness for the formulation and presentation
of an opinion in the context of litigation merely because the party
requesting such opinion did not prevail or recover to the extent anticipated."
Rather, its ruling was based on the unique circumstances of this
case, the court said, where Campbell held himself out as an expert capable
of preparing a scientifically supportable report and contracted with
the Ellisons to do just that.
"Instead, he produced a report which was admittedly error-riddled
and based upon methodologies not meeting either state or federal regulations,"
the court said. "Simply, Campbell did not perform the services for which
the Ellisons contracted and paid."
The case is
Ellison v. Campbell, 2014 OK 15 (3/11/2014).
This article was originally published in
BullsEye, a newsletter distributed by
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Posted April 18, 2014