How Do You Hire An Expert To Help With Your Personal Injury Case?
In addition to fact witnesses, most personal injury claims will require expert witnesses. An expert is required to explain things that are outside common knowledge, such as medical treatment trucking regulations, accident reconstruction or the engineering of a product. Rather than testifying about the particular occurrence, the expert will rely on the specialized skill and knowledge he or she has to explain to a judge or jury anything that is extremely complex. Below is some information about experts and the discovery process concerning experts that takes place prior to trial.
Defining An Expert
Section 60-456 controls who is considered an “expert” under Kansas law. While most experts are trained in some field of science, such as medicine or engineering, a wide array of experts exist. In fact, anyone that possess technical or specialized knowledge may be considered an expert. And an expert can be qualified by knowledge, skill, experience, training, or education. For example, an expert may have gain knowledge on how a vehicle runs by working for several years in auto repair. And the area of expertise may be anything outside common knowledge. In Kopja v. Genie Co., under the similar federal standard, a witness was qualified as an expert on knots. He testified about the sufficiency of a knot on a safety device for a garage door. This highlights that the needs of each case will determine the type of (if any) expert needed for trial.
Though a wide number of individuals can be qualified as experts, in the most common fields of expertise a select number of individuals routinely testify as experts. These “guns for hire” are extremely prominent in the medical field. Some experts will exclusively testify for one side of litigation, generally reaching the same conclusions based upon identical research or studies. Others, however, will testify for both plaintiffs and defendants, and may even contradict prior conclusions by using conflicting research to support each result. It is also not uncommon for frequent litigants, such as insurance companies, to retain a medical expert to testify for each injury claim as needed.
An important distinction should be noted here. Often, an attorney may consult with someone about a case with no intention of ever calling that person to testify at trial. These individuals are not treated as “expert witnesses” by the law because they are not witnesses at all. They are given great protection from discovery based upon protections Kansas law affords attorneys in preparing for trial. However, the information an attorney gains from these meetings is of limited use. An attorney cannot, for example, simply inform the jury of what this individual told the attorney in private. Instead, the individual might direct the attorney to a research report or published source that is intended to be used in place of expert testimony. Such sources present their own challenges as evidence and are universally recognized as less effective in explaining such information to juries than a live expert witness. Thus, must attorneys will use expert testimony, even though it requires the additional rigors described below.
Written Discovery Concerning Experts
Special discovery rules apply concerning expert witnesses. First, it is important to note that all experts are only potential experts until the court has ruled otherwise. The court will generally set a deadline for disclosing experts. However, if the court nor the parties set a deadline, all experts must be disclosed at least 90 days prior to trial per K.S.A. 60-226(b)(6)(C). Disclosing an expert requires more than simply stating the expert’s name. A disclosure also requires an explanation of what the expert will be testify about, the substance of the expert’s opinion, and the grounds for the expert’s opinion. This information allows the opposing side to determine if they will need to find a competing expert. Failure to make a timely disclosure will likely result in expert being prohibited from testifying at trial.
Upon receiving the disclosure of an expert, an experienced attorney will immediately begin researching the expert. An attorney will want to find the research and information the expert has relied upon, to either review the information for his- or herself, or to present it to another expert. To prevent the expert from testifying, an attorney has the option to attack the expert’s qualifications or the method used in reaching the conclusion. It is generally easy to target the methodology, particularly when the expert is a licensed doctor. An example of this would be in the field of concussion diagnosis. There are several competing theories as to how to best diagnose concussions, and particularly, how to decide between competing traumas when determining the cause of a concussion. However, for a methodology to be allowed in court it must be shown to be “reliable.” If a lawyer can show that the methodology used is not reliable enough, the expert will not be able to testify about that methodology or the conclusion reached in using that method. Likewise, if an expert’s experience or education is shown to be insufficient to establish expertise, the court will not allow the witness to testify at all: the witness is not considered an “expert” by the law. These challenges, known as Daubert challenges after the case Daubert v. Merrell Dow Pharmaceuticals, can be made any time after the expert is disclosed.
Non-Written Discovery Concerning Experts
Expert witnesses are also required to be available for deposition by the opposing party. The Kansas Supreme Court recognized in Hagedorn v. Stormont-Vail Regional Medical Center that the purpose of deposing experts is to ensure that the opposing attorney knows what to expect from the expert at trial. This is important because of the specialized knowledge an expert uses will likely not be known to the opposing attorney, and thus the ability to test it or show its insufficiencies is lacking. So, unlike the deposition of a fact witness, where the goal is to find out what the person knows, an expert deposition seeks to find out how the expert reached the conclusion he or she did.
At an expert deposition, an attorney will focus on the expert’s qualifications and methods of arriving at conclusions. Common questions will focus on education and experience that an expert possesses. These will define the “scope” of the expertise, and thus, what the expert can testify regarding. For example, a dentist would be able to testify about the underlying condition which may require oral surgery, but may not be able to testify about the procedure of actually performing the surgery—an oral surgeon would be needed for that. The second subject will be the methodology used by the expert. Here, the questioning will come a wide array of issues, including how widely used the methodology is, the method’s known failure rate, and competing methods available. Again, the goal of these questions is to determine if the methodology is reliable enough to be used in court.
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