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No Appeal for Expert Witness 'Third Wheel'
Expert witnesses play a big role in most - if not all - of the court cases that get reported here.
is a law firm specializing in expert witnesses. Every month or so they send me an article about specific court cases
that could be of interest to RF Cafe visitors. This particular installment is titled, "No
Appeal for Expert Witness 'Third Wheel'" and deals with the impact on an expert witness when the court rules that
his/her contribution is not admissible. - Kirt B.
Reprinted with permission.
No Appeal for Expert
Witness 'Third Wheel'
Maggie Tamburro on 2012/10/02
The ruling experts and attorneys often dread:
“The expert’s proffered testimony is not the
product of reliable principles and methods as established under Daubert and is therefore excluded as inadmissible.”
A failed Daubert challenge is tantamount to never making it out of the starting gate. It often results in the
granting of a motion for summary judgment and dismissal of the case. Without the expert’s testimony to support the
requisite burden of proof, there is no longer a genuine issue of material fact.
The result? Expert testimony
excluded, motion for summary judgment granted in favor of the opposing party, case dismissed.
For the party who lost, options exist. The expert? Not so much. As a nonparty to the action,
the expert has few if any legal remedies to the adverse ruling. To add insult to injury, the expert now has a successful
Daubert challenge on the permanent court record. Although not necessarily the kiss of death for a career (as Daubert
challenges are now the norm), the failed challenge will likely follow the expert for years.
the question (one I touched on
earlier this year):
Does an expert wintess have any remedies when his or her testimony is excluded as inadmissible under a Daubert
One Expert Witness Fights Back
case out of
the U.S. District Court for the E.D. of Washington, one expert witness fought back. In this case, the expert’s testimony
failed a Daubert challenge and was excluded as inadmissible. However, in a bold, buck-the-system move, the expert
filed a nonparty appeal of the order excluding his testimony in the 9th Circuit, claiming that the lower court abused
its discretion in excluding his testimony by using defamatory language in its order.
Expert as “Witness-Appellant”
– No Nonparty Appeal for Third Wheel
In discussing the issue, the 9th Circuit noted that it has allowed
nonparty appellate standing only where “(1) the appellant, though not a party, participated in the district court
proceedings, and (2) the equities of the case weigh in favor of hearing an appeal.”
The appellate panel concluded
that, failing the first requirement above, the expert did not have standing to appeal the district court’s order excluding
his expert testimony. In a unanimous decision, the 9th Circuit dismissed the expert’s appeal, pointing out that the
expert’s participation in the case was not akin to participation as a party.
Mysteriously, however, the appellate
panel didn’t stop there. In classic chicken-or-egg fashion, the panel curiously noted that the expert did not object
to the order to exclude his testimony at the lower court level nor argue the legal merits of the motion.
begs the question: Did the panel suggest that, had the expert objected to the motion to exclude his testimony and
litigated it in the lower court, he may have been granted nonparty appellate standing? It’s hard to believe, given
that the expert was never a party to the original proceeding in the first place, but at least
commentator has suggested that position.
A Delicate Issue – Expert Nonparty Appellate Standing
Although seemingly acknowledging such a remedy exists under the right circumstances, the circuit panel steered
away from granting the expert nonparty status at the appellate level (perhaps prudently, as doing so would ostensibly
open a can of worms).
For example, would pursuing a remedy on behalf of the expert create a conflict of interest
by making the true party’s interest in the litigation possibly adverse to the expert’s interest? If so, perhaps an
adverse ruling on expert testimony shouldn’t be appealable as part of the same case, or by the same attorney.
But what if an appeal were to help the interests of both the client and expert (as it would have in the instant
case)? The attorney’s ethical duty and fidelity is strictly owed to the client, neither to the expert nor any other
paid consultant. Blurring the distinction between the professional reputation of an expert and duty owed to the client,
who is footing the bill, puts the client’s interest potentially at odds with that of the expert. The bottom line:
The attorney should use extreme caution from taking any position which could potentially jeopardize the duty owed
to the client.
Defamation as a Remedy
Not surprisingly, the appellate court was silent
on the expert’s allegation of defamatory language in the order, which brings up another issue – was the expert hinting
at a future, independent civil defamation action? If so, against whom? The 9th Circuit didn’t elaborate. The opinion,
unpublished and issued on September 5, 2012, was short on discussion, leaving more questions than answers.
However, one thing seems clear. Experts are seeking remedies in a legal system that gives scant protection to their
Viable Expert Remedies Needed?
The expert whose testimony
was at issue in this case was not short on credentials. Having received a BS and MD from Brown, followed by a Master’s
from Harvard, he was licensed to practice medicine in three states and board certified in two areas of medicine. Additionally,
even the lower court’s ruling (excluding the expert’s testimony) describes him as an “accomplished scientist” who
has served as an expert witness in other related cases, noting his current involvement as an expert witness in at
least one other similar case.
If the challenge can be used to attack the credibility of the expert in another
case, shouldn’t the expert have some remedy at the district court level? Each time an expert gives testimony, he puts
his credibility and professional reputation on the line, but in exchange gets no party status, no real method or due
process for addressing grievances (short of filing a separate civil defamation action which can be expensive to litigate
and difficult to prove).
Should experts have a process to challenge exclusion of their testimony, or at the
very least, placing of record an exception to the findings, response, or answer in his or her defense? Would that
be consistent with the interests of the client, or create a potential conflict?
Tell us what you think.
A copy of the 9th Circuit’s unpublished opinion can be viewed
This article was originally published in
BullsEye, a newsletter distributed
by IMS ExpertServices™. IMS Expert Services is the
premier expert witness search firm in the legal industry,
focused exclusively on providing custom expert witness searches to attorneys. To read this and other legal industry
BullsEye publications, please
visit IMS Expert Services' recent articles. For your next expert witness search, call us at 877-838-8464 or visit