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THE PITFALLS OF EXPERT QUALIFICATION

| Sep 4, 2020 | Firm News

A recent opinion from the Southern District of Florida, O’Malley v. Royal Caribbean Cruises, Ltd., provides a stark reminder of the importance of properly qualifying an expert. No. 17-21225-Civ-SCOLA/TORRES, 2018 Lexis 99052 (S.D. Fla. June 13, 2018).

In this case, Plaintiff, a passenger on a twelve-night cruise, claimed that she broke her ankle by slipping on an errant ping pong ball which found its way onto a skating rink she was skating on. Plaintiff designated a liability expert, who opined that a ping pong ball on a skating rink created a hazard and that the crew ought to have taken action to prevent the presence of ping pong balls on their skating rink. Defendant took issue with, among other things, the expert’s qualifications. Ultimately, the Court struck the expert, noting that his relevant experience is found in “two short sentences of his expert report,” and that the Plaintiff’s attorney failed to disclose the expert’s curriculum vitae.

Notably, the question of the qualifications of this witness turned on the procedural issues of (1) how thoroughly he described his qualifications and (2) whether the attorney had properly disclosed information about his qualifications, as opposed to the nature of the qualifications themselves.

Texas litigation practitioners often face challenges not just to the opinions but also to the qualifications of their experts, and often these challenges are decided not the experience of the expert but on whether the expert (or the attorney) took care to properly put those qualifications before the Court.

For example, in one of the opinions frequently cited in the context of Motions to Strike Controverting Affidavits, Turner v. Peril¸ the Court noted that the expert’s “credentials as an orthopedic surgeon and his blanket statement that the counteraffidavits were made on the basis of his ‘education, training, and experience’ did not show that he was qualified to contravene all of the matters contained” in the affidavits at issue. 50 S.W.3d 742, 747 (Tex.App.—Dallas  2001). In reaching this ruling, the Court acknowledged that the expert “may have been qualified to contravene all or some” of the matters at issue, but held that “his status as a licensed physician did not automatically qualify him as an expert on every medical question.”

The Texas Supreme Court recently affirmed this proposition in the context of a claim under the Texas Medical Liability Act or TMLA, stating, “there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question.” Benge v. Williams, 548 S.W.3d 466, 472 (Tex. 2018), (quoting Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)).

Just this year the Court of Appeals for the Fifth District upheld a trial court that struck an affidavit from a psychologist whose affidavit contained a statement that he “is a Licensed Psychological Associate licensed to practice in Texas,” but whose affidavit contained “no recitation of qualifications, no indication how long the licensed psychological associate has performed that job, and no indication how much time the LPA spent with [the Appellant].” Draughon v. Johnson¸ No. 05-18-01184-CV (Tex.App.—Dallas, Jan. 22, 2020).

In a more striking example, the Supreme Court recently addressed the question of the video deposition of an expert which was excluded from evidence by a trial court because “the video cuts at issue did not contain the predicate to establish [the witness’s] qualifications as an expert witness.” Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex 2018). The attorneys for the excluded expert made an offer of proof to preserve the potential error, and cited those portions of the deposition which addressed the expert’s qualifications. On the basis of the offer of proof rather than the original edited video, the Court ultimately held that the expert was qualified, but cautioned, “To be clear, an offer of proof is not a work-around for the foundational requirement that an expert’s qualifications be proven.” In an illustration of the importance of getting the presentation of this type of evidence right at the trial court level, the Supreme Court then concluded that the exclusion of the video deposition was harmless error.

Conclusion:

Each of the cases highlighted ultimately illustrate that the most common reason for an expert or his opinions to be excluded is not the expert’s lack of qualifications, but that those qualifications are not laid out for the Court. It is notable that the cases discussed where an expert was stricken or excluded involved the presentation of affidavits (in Turner and Draughon), a written expert report (in O’Malley), and an edited video deposition (in Gunn). These experts were variously excluded because, respectively, they stated general rather than specific qualifications, they failed to indicate their years of experience, their curriculum vitae was not disclosed, or because their qualifications were (apparently) edited out of the intended presentation. One can infer that pre-prepared nature of this evidence resulted in the same outcome in each case—by the time a court was ruling on the qualifications, it was too late for the evidence to be fleshed out.

If expert reports, affidavits, or other pre-prepared material are to be presented as evidence in trial, the attorneys and the experts understandably want them to be both persuasive and succinct. Recitations of education, training, or work history are often dry, technical, or otherwise uninteresting to the layman. Nevertheless, if the parties want the opinions contained therein to ultimately make their way to the finder of fact, they must take care to adequately present not just the expert’s conclusions, but the qualifications they have to make such conclusions.

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