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Design and construction litigation: Is your expert really an expert?
9/3/21
By: Samuel Gallman
When determining who to use as an expert, the question often arises, “is my expert qualified to opine on the subject matter I have retained him/her for?” When answering this question, two things must be considered. First, whether the witness is legally qualified to testify as an expert. Second, whether the expert is actually qualified to give the opinion they intend to give.
Legal Requirements
Most states take guidance from the Federal Rules of Evidence. Federal Rule of Evidence 702 provides that any person who has “knowledge, skill, experience, training, or education” can be qualified as an expert.
In California, under California Evidence Code § 720, “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.”
Chadock v Cohn was a case regarding the competency of an expert witness to testify in a medical malpractice case. The trial court granted the defendant’s motion for nonsuit because it ruled the plaintiff’s expert “was incompetent to testify…because he was…not a licensed medical doctor.” (Chadock v. Cohn, 96 Cal. App. 3d 205, 207.) On appeal, the Court overruled that finding stating that CEC § 720 does not require an individual to possess “the same professional license or certification” to testify. (Id. at 209). All that is required for an expert to testify is a showing that “the witness has the required professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject.” (Id. at 208-209).
Both Federal and California rules are fairly broad and do not require formal training or licensure to qualify an individual as an expert. Essentially, any adult can be deemed an expert on some topic or another.
Actually Qualified
As one may guess, being legally qualified may not always equate to being actually qualified. Many considerations must be taken into account, including licensure. If a case involves a spinal injury, the opinion of a board-certified orthopedic surgeon has more weight than an ophthalmologist’s opinion. Both an orthopedic surgeon and an ophthalmologist have to obtain a medical degree, but one is focusing on the musculoskeletal system and the other is focused on the eyes.
Even though most states do not require an expert witness to have a license to testify, other governing entities may. For example, a former engineer in North Carolina is being investigated by the North Carolina Board of Examiners for Engineers and Surveyors for practicing engineering without a license. The engineer had obtained a degree in engineering and worked for decades without a license under the state’s industrial exception. After qualifying and testifying as an expert in a civil case, he was sent a letter from the Board explaining they were investigating him, and he could be charged criminally.
Although under most state laws it is easy to qualify an individual as an expert, a number of other considerations must be evaluated before choosing an expert. The obvious one is the weight the expert’s opinion will hold with the trier of fact. The less obvious, as explained above, is the consequences of an expert testifying, particularly if they are not licensed. Therefore, when choosing an expert, the best practice is to choose an expert that has adequate licensing and certifications. Not only to present the best case possible but also to keep your expert witnesses out of trouble.
For additional questions, please contact Samuel Gallman at samuel.gallman@fmglaw.com
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