Expert Witnesses

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 What is an Expert Witness?

An expert witness is an individual who is permitted to testify at a trial because they have proficiency or special knowledge in a particular field or on a particular topic which is relevant to the case. Expert witnesses often work in fields including, but not limited to:

  • Scientific;
  • Medical;
  • Technical; or
  • Human resources.

When are Expert Witnesses Used?

An expert witness may be used when technical, scientific, or specialized testimony will be helpful for a jury to have an understanding of evidence or to resolve a disputed issue.

What Qualifications do Expert Witnesses Need?

The Federal Rules of Evidence do not provide any specific qualifications for expert witnesses. The court, however, should be persuaded that the individual claiming to be an expert witness has special technical or other specialized knowledge which a regular lay person would not possess.

This special knowledge may be a result of the expert witnesses’:

  • Education;
  • Professional experience; or
  • Specialized training.

The court will help to ensure that the testimony given from an expert witness will be reliable and helpful.

Is Evidence given by an Expert Always Admissible?

No, evidence provided by an expert witness is not always admissible. The court has discretion to determine whether the evidence provided by the expert is reliable and whether it should be admitted.

The court will use several factors as a guide when determining if evidence provided by an expert witness should be admitted or excluded, including:

  • Whether the evidence is helpful to the judge or jury;
  • Whether the witness is qualified;
  • If the testimony is based on sufficient data or facts;
  • If the testimony is a product of reliable methods or principles; and
  • If the expert applied the facts of the case reliably.

The court may also exclude evidence which would:

  • Confuse the jury;
  • Unfairly prejudice a particular party; or
  • Take too much time to present to the jury.

How Should I Choose an Expert Witness?

There are numerous issues to consider when deciding whether or not to use an expert witness. Issues that an individual may take into consideration when determining whether or not to use an expert witness include:

  • Whether the expert is a professor or another professional who can clearly explain difficult concepts;
  • If the expert is able to make a persuasive delivery to the jury;
  • If the expert has the time to prepare for the case; and
  • Whether it would be easy for the other side to show that the expert is biased or is not independent from the case.

Do Expert Witnesses Always Testify?

No, expert witnesses do not always testify. An expert witness may simply be the individual who is best suited to help evaluate a case by surveying a certain portion of or issue in a case.

For example, if a company manufactured a machine that exploded during use, a fire and explosion expert witness may be helpful in determining if that explosion was the result of a manufacturing defect. If a non-testifying expert witness, sometimes referred to as a consultant, provides their opinion on an issue, it may not be provided to the other side during discovery and the expert will not be required to testify.

In What Types of Cases can Expert Witnesses be Used?

Expert witnesses may be used in a variety of cases, including civil and criminal cases. Common cases and issues that expert witnesses examine include:

  • Negligence;
  • Medical malpractice; and
  • Determining amounts of damages.

Expert witnesses may be especially helpful in cases that have difficult issues to prove, for example, emotional distress.

What is Emotional Distress?

It is usually difficult to recover damages for injuries which result in emotional distress. Unlike broken bones and other physical injuries, it is difficult to prove these types of injuries occurred.

Emotional distress, also referred to as mental anguish, is a non-physical and mainly psychological injury which can be asserted in a civil lawsuit. In short, the law recognizes emotional distress as a state of mental suffering that occurs as a result of an experience that was caused by the negligence or intentional acts of another individual, typically of a physical nature.

A bystander or an individual who experienced the emotional trauma personally, in addition to their relatives, may be able to file a civil lawsuit that alleges emotional distress. Emotional distress may present as:

  • Feelings of humiliation or shame;
  • Insomnia;
  • Depression;
  • Self-destructive thoughts;
  • Anxiety;
  • Stress; or
  • Other emotional responses which may result from a traumatic event.

It is important to note that in the majority of cases, an individual may only be able to sue for emotional damages if the incident also resulted in physical harm, except in cases of sexual harassment or defamation.

In these types of cases, expert testimony from a therapist or psychiatrist may be used to prove a plaintiff’s case of emotional distress as well as to evaluate the amount of monetary damages associated with the injury.

This may require that the plaintiff be diagnosed with post traumatic stress disorder (PTSD) or another mental health condition by a:

  • Therapist;
  • Doctor; or
  • Psychologist.

Because of this, expert witness testimony is often required to prove to the court that the individual suffered an actual injury as well as the amount of damages associated with that injury. Due to the fact that expert witnesses are required, a claim for emotional expenses may be expensive.

In addition to all of this evidence, the plaintiff must be able to prove the elements of an emotional distress claim. This requires proving that the emotional distress was due to the intentional or reckless act of an individual who acted with extreme or outrageous conduct which resulted in the plaintiff suffering emotional distress.

Outrageous conduct is more than:

  • Mere insults;
  • Threats;
  • Annoyances; or
  • Petty oppressions.

What about Medical Malpractice and Expert Witnesses?

One crucial aspect of a medical malpractice claim is proving that the plaintiff’s physician deviated from the standard of care that a reasonably prudent doctor would have provided during treatment. In order to show the standard of care, a plaintiff will be required to present expert witness testimony regarding this issue as part of their case.

In a medical malpractice case, an expert witness may assess an individual’s treatment and then testify as to whether or not the doctor’s action or lack of action led to the injury. The expert witness will also need to testify that the doctor’s actions failed to conform to the standard of care required.

An expert witness in a medical malpractice case is often a current or retired healthcare professional. Numerous healthcare professionals will offer expert witness services as a way to supplement their income.

The majority of malpractice lawyers have a list of expert witnesses with whom they usually work and should be able to locate a witness who is capable of testifying on an individual’s behalf.

Do I Need to Talk to an Attorney about Expert Witnesses?

If an expert witness is required in your case, it is important to consult with an experienced attorney. Trials are very complicated, and those involving expert witnesses even more so.

Having the right expert witness can be an advantage to an individual’s case. Your attorney will be aware of how to ensure that if a non-testifying expert is consulted, they will remain protected from discovery so that the information gathered by this expert will not be shared with the other side.

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