Below are sample expert designations in a variety of different kinds of tort cases:
These are all designations in Maryland cases. Certainly, you want to check the case law for jurisdictional differences but generally the gist of what is required is largely the same in most jurisdictions.Maryland Expert Witness Law: Three Hoops
Maryland common law has long set parameters for experts to offer opinions at trial Radman v. Harold
. 279 Md. 167, 169, 367 A.2d 472,474 (1977) (“a witness may be competent to express an expert opinion if he is reasonably familiar with the subject under investigation, regardless of whether this special knowledge is based upon professional training, observation, actual experience, or any combination of these factors”).
Maryland Rule 5-702 now governs the admissibility of expert testimony although it largely echoes Maryland common law. It provides:
Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.
So there are three basic requirements. One frequently debated topic is the witness' qualifications to provide the testimony in the first place. All of the complex law on this point can be distilled down to one question: should this witness have the gravitas in this particular area to be giving expert testimony to a jury.
Under Maryland law, we inquire as to whether the expert has “special knowledge of the subject on which he is to testify that he can give the jury assistance in solving a problem for which their equipment of average knowledge is inadequate.” Wantz v. Afzal
, 197 Md. App. 675, 683 (2011).
This knowledge may be derived from “observation or experience, standard books, maps of recognized authority, or any other reliable sources,” including “the experiments and reasoning of others, communicated by personal association or through books or other sources.” Id. at 683.With respect to the second prong, the fact that the witness has not been personally involved in the activity about which he is to testify does not necessarily nix the expert. But it definitely does not help.
The smart play is to play it safe and pick an expert that is immune from these kinds of collateral attacks. If you have to fight this battle over your only witness to speak to an essential topic, you have already lost. Pick experts from the beginning that are more than qualified. Even if you get past the 5-702(2) threshold, you do not want a jury going back to deliberate wondering if your expert is even qualified to be talking about these issues.
There is a wide range of sources an expert can use as a factual basis to meet the final prong of Rule 5-702. The Court of Appeals has told us that a foundation for an expert's testimony may come from a whole host of sources, including not only the expert's first-hand knowledge but also facts obtained from the testimony of witnesses and facts that the expert assumes to be so via hypothetical questions. But there needs to be some factual predicate and that factual predicate must be laid before the expert offers any testimony at trial. More on Experts