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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. IMS ExpertServices 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.

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Reprinted with permission.

No Appeal for Expert Witness 'Third Wheel'

Posted by Maggie Tamburro on 2012/10/02

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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.

Weighing the Options

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.

This spotlights 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 challenge?

One Expert Witness Fights Back

In a 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.

Which 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 one legal 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 professional reputations.

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 here.

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 our website.

Posted  10/3/2012

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