WINNING THE EXPERT BATTLE AND LOSING THE WAR

September 25, 2012 § Leave a comment

You fight like the devil to get the trial judge to rule that your experts are qualified, and that they meet the criteria of MRCP 702 and Miss. Transportation Commission v. McLemore, 863 So.2d 31, 38 (Miss. 2003). The judge has done her job as gatekeeper, has found all to be well, and has let you get that expert testimony into the record. So you’re home free, right? Smooth sailing from here on out, right?

Not so fast, my friend (apologies, if any due, to Lee Corso).

Your little lawsuit sloop may still run aground.

That’s what happened in Ballard Realty, et al. v. Ohazurike, et al., decided by the MSSC on September 6, 2012. There, the court reversed the trial court’s ruling that allowed three different experts to offer testimony that quantified damages. The appellate court’s ruling found that one expert based her testimony on ” … insufficient and faux  facts and data, not the product of reliable principles and methods, properly applied … ” and found that the trial judge had abused his discretion in admitting her testimony. Another expert was found by the MSSC not to be qualified, and his testimony was improper and irrelevant to damages. The third expert’s testimony was found to be unreliable. While they were at it, the MSSC also threw out the unqualified lay opinion testimony of another witness, characterizing his testimony as ” … not a fact, but an inadmisssible opinion based on wishful thinking.”

The ouch factor in this case, as we have posted about it before, is that it reversed a jury verdict in excess of $3.5 million.

The lesson here is to keep in mind that as much as you want to win your case, you have to make sure that the experts you use are qualified, that their testimony is, indeed, relevant, that it is based on sufficient facts and data, that it is based on reliably certain principles and methods, and that the experts have applied the methods and principles reliably to the facts in your case. It’s your job to make sure that all of these factors are established without fail in the record. The mere fact that you convince the trial judge to let you proceed without satisfying all the criteria may win you the (trial) battle, but it will more than likely lose you the (appeal) war.

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