Expert Witness Reports
By: Steven Babitsky, Esq.
Expert witnesses are getting more and more “help” from retaining counsel in phrasing and writing their reports. Counsel will often include legal terms or phrases in the expert’s report to make sure it is legally sufficient and can withstand scrutiny.
The problem for expert witnesses arises when they have been poorly prepared to deal with explaining or defending the phrase(s).
Here is an example which arose at an unscripted demonstration during SEAK expert witness training.
Q. Sir, you testified that the excess radiation received by the patient was “a cause” the “factual and legal cause” and “substantial contributing factor” in the development of her cancer, correct?
A. That is correct.
Q. Sir, please explain what you meant when you said the excess radiation was the “factual legal cause” of the cancer.
A. Well that means more likely… actually, it is a phrase counsel suggested.
Q. What does it mean?
A. It means that the report will be accepted and sufficient.
Q. Can you come up to the board and write out the meaning of “factual legal cause?”
A. I will not… cannot… because I don’t know what it means.
Q. Well sir, how does it differ from “substantial contributing factor?”
A. I really… not sure. That phrase was also provided by counsel and no, I cannot come up to the board and define it.
Q. Is that the same for the phrase “a cause?”
A. Unfortunately, it is.
Q. So you signed a report with three phrases containing your causation opinions but have no idea what they mean?
A. Well I have some… that is correct.
Conclusion:
It is imperative for expert witnesses to be able to explain and define any and all words or phrases in their report. The fact that counsel provided the phrase is not an acceptable excuse or explanation.