Be Familiar with the Grounds for Challenging Expert Testimony
Sarah A. Johnson, Esq.
Litigation against an engineer will almost always involve expert testimony. Not only because it is required, but to establish the standard of care that is applicable to the expert and any possible breach of that standard.
However, during litigation, many engineers question whether the so-called expert providing the evidence against them is qualified to do so and/or whether the testifying expert’s opinions are based in fact or are merely conjecture.
In evaluating expert testimony, most jurisdictions have either adopted Federal Rule of Evidence 702 or utilized similar standards.1 Federal Rule of Evidence 702 states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.2
Accordingly, by application of such rules/standards, judges are charged with serving as gatekeepers in determining what expert testimony jurors are allowed to hear in connection with a case.
The first and most obvious way to challenge an expert is by examining his or her qualifications, as the expert must have the required knowledge, skill, experience, training, or education to testify about the subject matter. It is common for engineers to assume the expert testifying against them must be a licensed engineer within the same state as the engineer against whom they are testifying. However, this is not necessarily true, as the courts often focus on other factors over licensure, occupation, title, etc.3 Of course, if the expert lacks the skill and experience necessary to testify as to engineering principles, his or her testimony will not be allowed before the jury. Professionals operating outside of the field of engineering are often found lacking the relevant skill and experience to testify on engineering principles.4
A second and often overlooked way to challenge an expert is by arguing the information provided will not assist the trier of fact in any meaningful way or the subject matter of the testimony is already within the knowledge and understanding of the lay juror.5 Generally, statements of advocacy and legal conclusions do not aid the trier of fact, but instead impede on questions properly reserved for the trier of fact.6 Accordingly, if it seems as though the so-called expert is testifying as to facts which he or she could not possibly know or topics that any juror would be equally capable of forming an opinion on, the expert is likely not offering valid expert testimony, and his or her testimony should be challenged.
For example, the expert should not be allowed to testify that certain marks were or were not on the ground prior to the excavation of a site if the excavation removed all evidence of any markings and the expert never viewed the site prior to the excavation. In this scenario, the expert would be testifying to facts that he or she could not possibly know. Moreover, the expert would not be in a better position than the average juror to form an opinion on these facts.
Finally, an expert can be challenged by questioning the reliability of his or her testimony. The test of reliability may differ depending on the jurisdiction. Some apply a multi-factor test similar to Federal Rule of Evidence 702 and others apply a general acceptance standard.7 Regardless of the test applied, reliability is typically an issue where an engineering expert seemingly has little or no data to support his or her opinions.8 Of course, there are cases where an expert may be limited in the data he or she can collect and in what they can investigate by the facts and circumstances. However, if those limitations are absent, the reliability of the expert’s testimony should be questioned where the expert has not provided any basis for his or her opinions.
For example, in the case of a structural engineering expert, it should raise red flags if the expert did not do the calculations that he or she would be expected to do in order to form the basis of the opinion. If there is no reason why the expert could not have completed the necessary calculations, then there is likely a reliability issue with their opinions.
Although an engineer’s defense counsel will often take the lead on challenging the claimant’s engineering expert, it is important that engineers engaged in litigation familiarize themselves with the grounds for such challenges. The engineers’ greater knowledge of the engineering subject matter may put them in a better position to identify the grounds for challenging the expert testimony and assist their counsel in opposing the party.
1Cal Evid. Code § 801 (Deering 2020) (“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”); see also Ill. R. of Evid. 702 (LexisNexis 2020) ( “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.”); Guide to N.Y. Evid. rule 7.01, Opinion of Expert Witness, https://www.nycourts.gov/JUDGES/evidence/7-OPINION/7.01_OPINION_OF_EXPERT_WITNESS.pdf (“(1) A person qualified as an expert by knowledge, skill, experience, training, or education, may testify to an opinion or information concerning scientific, technical, medical, or other specialized knowledge when: (a) the subject matter is beyond the knowledge or understanding, or will dispel misconceptions, of a typical finder of fact; and (b) the testimony will help the finder of fact to understand the evidence or determine a fact in issue, especially when the facts cannot be stated or described in such a manner as to enable the finder of fact to form an accurate judgment about the subject matter.”)
2Fed. R. Evid. 702 (LexisNexis 2020).
3Thompson v. Gordon, 851 N.E.2d 1231, 1240 (Ill. 2006) (finding that licensure by the state is not a prerequisite for providing expert testimony in the field of engineering).
4See Ovella v. B&C Constr. & Equip., LLC, No. 1:10CV285-LGR-HW, 2011 U.S. Dist. LEXIS 93009, *10-11 (S.D. Miss. Aug. 5, 2011) (finding an architect not qualified to testify as an expert in structural engineering by virtue of his work using or incorporating the work of a structural engineer).
5Fed. R. Evid. 702; Cal Evid. Code § 801; Guide to N.Y. Evid. rule 7.01, Opinion of Expert Witness.
6Waste Mgmt. of La., LLC v. Jefferson Parish, No. 13-6764, 2015 U.S. Dist. LEXIS 135529, *37-39 (finding that an engineering expert could not testify as to contract interpretation or legal conclusions as such does not aid the trier of fact, but rather impedes on questions of fact reserved for the trier of fact).
7Fed. R. Evid. 702; Ill. R. of Evid. 702; Guide to N.Y. Evid. rule 7.01, Opinion of Expert Witness (“(2) Where the subject matter of the testimony is not based on the personal training or experience of the witness but rather is based on scientifically developed procedures, tests, or experiments, it must also be (or have been) established that: (a) there is general acceptance within the relevant scientific community of the validity of the theory or principle underlying the procedure, test, or experiment; (b) there is general acceptance within the relevant scientific community that the procedure, test, or experiment is reliable and produces accurate results; and (c) the particular procedure, test, or experiment was conducted in such a way as to yield an accurate result.”)
8Affinity Mut. Ins. v.Thacker Air Conditioning-Refrigeration-Heating, Inc., No. 3:16-CV-279 JD, 2019 U.S. Dist. LEXIS 84713, *9-17 (N.D. Ind. May 20, 2019) (finding unreliable an expert’s opinion that the installation of HVAC units on roof trusses caused a roof collapse given that it was based only on “chronological timing of this roof collapse incident” and “the limited collapse location”); Fowler v. State Farm Fire & Casualty Co., No. 1:06CV489-HSO-RHW, 2008 U.S. Dist. LEXIS 114707, *4-9 (S.D. Miss. July 2, 2008) (finding that structural engineering to be akin to a hard science upon which conclusory opinions do not meet the applicable reliability test).