I recently represented a client at a court hearing on a motion to compel appraisal to determine the amount of roof damage from Hurricane Wilma. The insurance company’s attorney opposed appraisal, so the judge asked him who other than appraisers should determine the amount of damage from Wilma. “I’m not getting on that roof!” exclaimed the judge. “Are you getting on the roof?” he asked the insurance company’s attorney before looking at me and asking me the same question. As much as I wished I were qualified to differentiate between hurricane damage and wear and tear, I admitted that such a decision should be left to the experts. That experience led me to ponder on the subject of experts.
Generally, under Rule 702 of the Federal Rules of Evidence, specific and relevant knowledge, skill, experience, training, or education is required to qualify an expert witness. There are no degree or certification requirements, and no years of service or publication requirements. Courts have allowed experts with no formal education but years of experience (See Eagle Pet Serv. Co. v. Pacific Employers Ins. Co., 175 A.D. 2d 471, 572 N.Y.S. 2d 625 (N.Y.A.D. 3 Dept., 1991)) and “academics with no practical experience” (See Lavespere v. Niagara Mach. & Tool Works, 910 F.2d 167 (5th Cir. 1990)). Sometimes the qualifications of an expert will be called into question, and other times the dispute will be over the reliability of the expert’s principles and methods.
The same issue of hurricane damage versus wear and tear that I was litigating in South Florida also came up recently in North Carolina federal court over distinguishing between a covered cause of loss (Tropical Storm Ernesto in 2006) and an excluded cause of loss (wear and tear). In Sheffield v. West American Ins. Co., No. 08-191, 2010 WL 2990012 (E.D. N.C. July 27, 2010), the insurance company argued that the insured’s experts’ opinions should be excluded because they were “unreliable and wholly speculative, because, among other things: (1) their opinions are based on speculative and unsupported assumptions, not facts, data or scientific knowledge; and (2) their opinions are not based on reliable principles or scientific methods.”
The Sheffield Court turned to the United States Supreme Court decisions in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) to determine if the experts’ testimony would be reliable:
The Supreme Court has noted four non-exhaustive factors a court may use to determine the reliability of scientific expert testimony: (1) whether a theory has been tested; (2) whether it has been subject to peer review; (3) whether a technique has a potential rate of error or standard operating procedures; and (4) whether a theory is generally accepted within the scientific community. Id. These four factors do not need to be applied in all cases; the trial judge has “considerable leeway” in an individual case to determine “whether particular expert testimony is reliable.” Kumho Tire Co., 526 U.S. at 152 (1999).
The Sheffield opinion did not discuss the principles and methods the experts were using, but rather found that the insurance company did not meet its burden of proving that the experts’ testimony would be totally speculative or wholly irrelevant.
Courts are not limited to the factors above to determine admissibility of expert testimony. The advisory committee note to Rule 702 of the Federal Rules of Evidence includes additional factors, and other courts have modified or changed the list above. If you are considered an expert in something, let me know what makes you an expert and why. If you have ever looked for an expert, let me know what qualifications you look for. For everyone else reading this, enjoy a little expert testimony from Hollywood: