Recap of Examining Damages Experts Program

Issue July/August 2023 August 2023 By Jessica Gray Kelly
Complex Commercial Litigation Section Review
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Jessica Gray Kelly

On Jan. 31, 2023, the Complex Commercial Litigation Section Council hosted a program on Examining Damages Experts, with esteemed panelists Michael P. Angelini, Esq., of Bowditch & Dewey LLP and Hon. Peter B. Krupp of the Business Litigation Session, and moderated by Jessica Gray Kelly, Esq., of Freeman Mathis & Gary LLP.

The program started with Angelini reviewing federal and state rules, emphasizing the need to disclose all opinions in the expert reports. Angelini stressed, however, that once a report is disclosed, the information contained therein may be used by either side. Angelini also noted that expert depositions should only be taken when needed, as it is sometimes better not to give your opponent a roadmap to how you will conduct your cross-examination. 

Next, Krupp spoke on expert motions in limine. Rule 702 sets out bases for which an individual can offer expert testimony, and each of these bases can also serve as grounds to move in limine to exclude the expert: (1) the individual has to be qualified as an expert; (2) the opinion must be helpful to the trier of fact; (3) the opinion must be based on sufficient facts or data; (4) the opinion must be the product of reliable principles or methods; and (5) the expert must have reliably applied the principles to the facts of the case. In Krupp’s experience, challenges to an expert’s qualifications and the reliability of the method employed by the expert are the two “most fruitful attacks” at the motion in limine stage. Challenges to an expert’s method are known as Daubert challenges. Reliability means that the method used by the expert is replicable and accepted in the industry. 

Krupp does not believe challenges to the expert’s assumptions are productive. For example, if the expert used a reliable method, but came up with outlandish assumptions or failed to consider certain facts, it is more effective if those gaps in the expert’s opinion are brought out on cross-examination than through a motion in limine

Krupp also discussed what to think about when bringing an expert motion in limine, especially if it is unlikely you will win. From a tactical perspective, you may want to educate the judge and/or the other side of the weaknesses in their case, but in doing so, you are also tipping your hand as to what your cross-examination of that expert will be. Sometimes it makes more sense to hold your cards and catch the expert off guard on cross-examination, instead of giving the expert the opportunity to prepare. 

Angelini next discussed important points when presenting direct examinations of experts. He stressed the importance of presenting your expert as honest, rational and credible. If there are some weaknesses in your expert’s opinion, disclose them and explain them in your direct. Let the expert talk and explain what s/he did, and “qualify and amplify” the expert’s credentials and opinions. Krupp added that it is very important to make your expert appear reasonable and not overreaching. For example, you may want your damages expert to offer a range of numbers based on different assumptions, instead of sticking to one damages figure that is subject to attack. 

Angelini then turned to cross-examinations of experts, citing Irving Younger’s “10 Commandments of Cross-Examination.” Do not waste too much time on how much the expert is being paid; all experts are paid. You want to leave the jury with three to four points that they can take away from the cross-exam. All questions should be leading. Do not ask any questions that cannot be answered with yes or no. Moreover, if you can get the other side’s expert to agree with certain parts of your expert’s testimony, that can be very effective. Control the expert, but be respectful. 

Krupp agreed that brevity is very important in cross-examinations. It is not effective to merely repeat the direct exam of the expert. You need to be very prepared and know the subject matter so you can ask the right questions. Consult your expert on how to cross-examine the opposing party’s expert. 

Finally, the panelists answered questions from the audience. Angelini and Krupp agreed that it is a waste of time to make a big distinction between in-state and out-of-state experts. This issue is something that lawyers care about more than lay people. 
When asked about compelling ways to present complex economic testimony, Krupp recalled a recent case in which there were approximately 2,500 electronic exhibits. When it came to the expert testimony, the plaintiff used two to three graphic displays and had the damages expert explain in detail the theory of damages, which was effective in conveying to the jury what was really important. Angelini added that you need to take your time with the expert to convey its significance to your case.

The video of this program is available through MBA On Demand.

Jessica Gray Kelly is a partner in Freeman Mathis & Gary LLP’s Boston office. Throughout her career, she has represented individuals and businesses in high-stakes litigation matters, including commercial, real estate and land use, and professional liability disputes. Kelly also represents lawyers before the Board of Bar Overseers.