Written by Scott Jacobs
Speaking at last month’s HB Conferences’ “Causation Evidence in Toxic Tort Cases” gathering in Philadelphia, Steve Cooperstein of Brockman, Rosenberg, Brown & Sandler of Philadelphia offered a plaintiff’s perspective on preparing expert witnesses.
“Anticipate attacks when you hire an expert – the defense will attempt to derail your expert’s methodology. When he writes his report, ask your expert to include references to sources supporting general acceptance. You must determine if your expert can defend himself, added Cooperstein. “You must consider whether you need experts in other disciplines in order to rebut the possible attacks on your witness.”
Cooperstein continued to hammer home the point that you must have a thorough understanding of your own witness in order to understand whether you will need additional expert support to fend off attacks.
“You have got to get your expert to focus on his methodology,” continued Cooperstein. “I know this is easier said than done when using clinician. ‘I look at everything,” they will say. It may be an accurate way to how he perceives what he does. But if you tie him down differential diagnosis, you will uncover some scientific principles. Go back to the basics. Get as many unassailable principles as you possibly can to build a methodology that is immune from attack. It is very important for a witness to discuss why he discounted contrary epidemiology. That can be difficult but it is during this time you will know you may need some backup. At a minimum, you have to get the clinician to admit that stuff out there exists, it can be discounted and can withstand scrutiny.”
Collin K. Kelly of Alston & Bird, offering the defense perspective, said: “You have to keep in mind that you are going to need experts on your side. You need to make sure when submitting an affidavit and bringing them live, that all pieces of their testimony are consistent. You can get in trouble if they are not. Take the high ground and be bullet proof and prevent an expert from being a target.”
Scott Jacobs is a long-time legal writer and legal market expert, holding managing editor and director level positions at Mealey Publications and LexisNexis. Jacobs selected these quotes while attending the event, the materials from which are available now from HB Litigation Conferences.