SYLLABUS EXPERT WITNESSES AT TRIAL JANUARY 12-16, 2015

SYLLABUS
EXPERT WITNESSES AT TRIAL
JANUARY 12-16, 2015
Room 100B
Mon - Thur.: 4:00 - 7:00 p.m.
Friday: 9:00 a.m. - noon
Paul B. Martins:
Helmer, Martins, Rice & Popham, Co., LPA.
office: 513.421.2400
email: [email protected]
GOAL: Develop and hone litigation knowledge and skills to be able to properly prepare and
examine an expert witness at trial.
MATERIALS AND E-REGITRIES: You are responsible for material covered in the syllabus
and in class. Required readings are listed below. Any changes to the syllabus will be posted in
advance with email notice on TWEN.
ATTENDANCE: Attendance and participation are critical to this one-week class. Your
presence and participation is important, not only for your professional development but also for
the professional development of your classmates who will depend on you to assist them in
honing their litigation skills. Each of you will take turns playing the parts of experts, proponent's
counsel, and opponent's counsel.
As in real trials, excuses are rarely accepted for absences. Missing more than one day of
this five-day course will probably result in either an incomplete or failure. This determination is
reserved to my personal discretion. Effort is important. Failure to submit or participate in
assignments when called upon may adversely affect your grade. Unexcused absences, tardiness,
or lack of preparation may lower your final grade or result in other sanctions permissible under
the rules and regulations of the University and College. Excellent preparation and participation
will increase your final grade.
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GRADES: As with a trial, you are expected to be in class on time with your gear unpacked and
ready to actively participate. Lack of preparation is not acceptable.
• 25% of your final grade will be based upon a 20-question exam that you will receive
before the course starts. The questions will focus on the cases and rules that you will
cover in the first and second day of class. You will be given the first two days of the
course to complete the exam, turning it in at the start of the third day of class.
• 25% of your final grade will be based upon the quantity and quality of your in-class
preparation and participation.
• 50% of your final grade will be based upon two video examinations that you will
conduct and submit: (1) a 15-minute Daubert examination of an expert, and (2) a 15minute direct examination of an expert, qualifying the expert and proffering the expert's
opinions. The final three days of the course (9 hours) will be devoted to practicing for
these types of examinations. You will have 10 business days from the end of the course
(January 30, 2015) to prepare, conduct, and submit the video of your two examinations.
PREPARING FOR CLASS: Before the first day of class read carefully the following:
• Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
• Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
• Fed. R. Civ. P. 26(a)(2), 26(a)(3)(b), 26(e)(2).
• Fed. R. Evid. 701-706, 803, and 1006.
• The attached Fact Scenario, taken from a real case, Moore v. Komatsu, Ltd. (Gallatin
Cty., Ky.)
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ASSIGNMENTS
Monday, Jan. 12, 2015
• Rule 3.4(b), Ohio Code of Professional Conduct, Fairness to Opposing Party and Counsel.
• Whether an expert can be compelled to testify via subpoena.
• Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993).
− "Assist the trier of fact" = Relevance (Daubert, 509 U.S. at 591)
− "Scientific, technical, or other specialized knowledge" = Reliability
(Daubert, 509 U.S. 590-95)
− Rejection of Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923).
- "generally accepted" standard.
- abdicates judicial responsibility
- impossible to apply to new scientific device or technique.
• Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).
− Applies to all experts, not just scientists.
• Ohio Cases adopting Daubert and Kumho Tire.
− Finley v. First Realty Property Mgmt., Ltd., 185 Ohio App. 3d 366,
2009-Ohio-6797 (2009).
• Kentucky Cases adopting Daubert and Kumho Tire.
− Mitchell v. Commonwealth of Kentucky, 908 S.W.2d 100, 101-02 (Ky. 1995).
− Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 576-78 (Ky. 2000).
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Discuss Civil and Criminal Rules of Procedure
• Fed. R. Civ. P. 26(a)(2)
− Requirements of your Expert Disclosure.
− Assisting your expert in preparing a proper report.
− When are experts not required to prepare a report.
• Fed. R. Civ. P. 26(a)(3)(b)
−Time for Disclosure of Expert and Report.
• Fed. R. Civ. P. 26(e)(2)
− Supplementing Expert Report.
Ohio Rules of Civil Procedure 26(B)(5), 26(E).
Kentucky Rules of Civil Procedure 26.02(4), 26.05.
• Fed. R. Crim. P. 16(a)(1)(F)
− Government Disclosure of Reports of Examinations and Tests.
• Fed. R. Crim. P. 16(a)(1)(G)
− Government Disclosure of Expert Witnesses.
• Fed. R. Crim. P. 16(b)(1)(B)
− Defense Disclosure of Reports of Examinations and Tests.
• Fed. R. Crim. P. 16(b)(1)(C)
− Defense Disclosure of Expert Witnesses.
Williams v. Illinois, __ U.S. __, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012)
(U.S. Const. amend. VI right of Confrontation in the context of Expert
Reports and Fed. R. Evid. 703)
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Tuesday, Jan. 13, 2015
• Discuss Evidence Rules:
− Fed. R. Evid. 701, Opinion Testimony of Lay Witness
− Fed. R. Evid. 702, Testimony by Expert Witness
− Fed. R. Evid. 703, Basis for an Expert's Opinion Testimony
− Fed. R. Evid. 704, Opinion on an Ultimate Issue
− Fed. R. Evid. 705, Disclosing the Facts or Data Underlying an Expert's Opinion
− Fed. R. Evid. 706, Court-Appointed Expert Testimony
− Fed. R. Evid. 803(3), Hearsay Exception: Then-Existing Mental, Emotional, or
Physical Condition
− Fed. R. Evid. 803(4), Hearsay Exception: Statement Made for Medical
Diagnosis or Treatment
− Fed. R. Evid. 803(6), Hearsay Exception: Records of a Regularly Conducted
Activity
− Fed. R. Evid. 803(18), Hearsay Exception: Statements in Learned Treatises,
Periodicals, or Pamphlets
− Fed. R. Evid. 1006, Summaries to Prove Content
• Ohio Rules of Evidence 701-705, 803(3), 803(4), 803(6), 803(18), 1006.
• Kentucky Rules of Evidence 701-706, 803(3), 803(4), 803(6), 803(18), 1006.
• Discuss Fact Scenario:
− Product Liability Case: Moore v. Komatsu, Ltd.
− Engineer for defective brake design (Liability)
− Engineer defending product brake design (Liability)
− Economist for lost earning capacity and life care plan (damages)
− Life Care Planner and RN summary of voluminous medical records (damages)
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• Discuss Resumes & Expert Reports:
• For the Plaintiff, Herschel Moore:
− Thomas R. Huston, P.E., Ph.D. (engineering design)
− Cameron Parker, R.N. (Certified Life Care Planner) (summary of
medical records & Certified Life Care Plan)
− William T. Baldwin, Ph.D. (economics - lost earning capacity & cost of
Life Care Plan)
• For the Defendant, Komatsu, Ltd.:
− R.W. Walker, P.E., Ph.D. (engineering design)
− David W. Stallman, P.E. (engineering design)
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Wednesday, Jan. 14, 2015
• Turn in Exam (20 questions on Days 1 & 2 Materials).
• Practical Exercises: Preparing your expert for deposition and trial.
• "Possible" vs. "Probable"
• "Industry Standards"
• Relevant (Daubert)
• Reliable (Daubert)
• Scope of Opinions Covered in Report
• Payment for Expert's time.
• Demonstration & Discussion [0.5 hour]
• Practical Exercises [2.5 hour]
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Thursday, Jan. 15, 2015
• Daubert examinations [2.5 hours]
− Demonstration
− Cross-examination on Daubert issues by opponent ( with proponent objecting)
− Direct-examination on Daubert issues by proponent (with opponent objecting).
• Critique / Discussion [0.5 hour]
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Friday, Jan. 16, 2015
• Trial Examination of Experts [2.5 hours]
− Demonstration.
− Direct Examination of Expert.
- Qualify Expert by proponent (with opponent objecting).
- Expert Testimony of Opinions by proponent (with opponent objecting)
- Cross-examination by opponent (with proponent objecting).
• Critique / Discussion [0.5 hours]
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FINAL EXAM
Submit within the next 10 business days (by January 30):
(1) a15-minute videotaped Daubert examination of one of the experts;
and,
(2) a15-minute videotaped Direct Examination of one of the experts
(qualifying the expert and presenting the expert's opinion testimony).
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