Like all other aspects of a trial, counsel should make decisions about expert testimony methodically and well in advance of the trial date. Sometimes, this means anticipating the opposition’s arguments and preemptively preparing a proper foundation. At other times, it means presenting the expert’s compensation as reasonable. Finally, it means restricting the expert’s testimony to build credibility. Preparation: Anticipating and Responding to Objections to Foundation Before an expert can provide an opinion, the attorney must lay a foundation showing the expert’s opinion is based on sufficient facts and reliable methodology. OEC 702 (ORS 40.410) provides a starting point for the use of an expert witness, “a witness, qualified as an expert by knowledge, skill, experience, training or education, may testify thereto”. A frequent mistake attorneys make is assuming just because a witness has certain degrees, they are automatically qualified as an expert. It takes more. Proponents of expert testimony should be able to qualify their experts under the factors listed in State v. O’Key, 321 Or. 285, 899 P.2d 663 (1995) and State v. Brown, 297 Or. 404, 687 P.2d 751 (1984). Brown set out seven factors for the trial court to consider in determining the admissibility of scientific evidence and O’Key added the Daubert test. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786 (1993). In other words, having certain degrees or credentials does not guarantee an expert will be qualified or able to testify. One example of disqualifying testimony is State v. Threlkeld, 314 Or. App. 433, 437, 496 P.3d 1147 (2021) (holding a police officer was not qualified as a knife expert to identify the defendant’s weapon). Conversely, appellate courts have found certain experts are qualified to provide expert testimony, see e.g., Marcum v. Adventist Health, 345 Or. 237, 247-49, 193 P.3d 1 (2008) (holding an expert in a medical malpractice case could testify regarding medical causation when a proper foundation was provided, such as medical literature and an explanation of differential diagnosis). Further, the expert does not have to be licensed in the jurisdiction to testify, as long as the “record was sufficient to show the validity of the expert’s methodology.” Durette v. Virgil, 272 Or. App. 545, 546, 356 P.3d 639, rev. denied, 358 Or. 537 (2015) (allowing a biomechanical engineer, not licensed in Oregon, to testify regarding whether a crash caused a motorist’s injuries). In practice, on more than one occasion, counsel has been surprised and unprepared at an objection to foundation or the opponent’s request for an OEC 104 hearing regarding the expert’s qualifications. The offering counsel assumed, incorrectly, that the expert’s degrees and licenses were sufficient. Successful counsel offering expert testimony should outline the foundation for the expert, ensuring they satisfy the Brown and O’Key factors. If there are appellate decisions supporting or rejecting such testimony, counsel should be prepared to address them, as trial courts are bound by appellate decisions. If the expert lacks the foundational knowledge to explain the scientific reliability of their opinion, that opinion may be objected to and likely excluded. For example, while a medical expert may be qualified to testify about a medical diagnosis, such as asphyxiation, they may not be qualified to testify about the cause, such as strangulation by a belt, unless they can demonstrate the requisite training and experience to support their opinion that a belt—and not some other item —caused the asphyxiation. JUDGE THANH TRAN of the Clackamas County Circuit Court practiced law, mostly in a wide- ranging civil practice, for 29 years before Oregon Governor Tina Kotek appointed him to the bench in 2023. Judge Tran is Oregon’s first Vietnamese American judge and the first Asian American judge on the Clackamas County Circuit Court. In 2002, he started his own law practice in Oregon, where he represented individuals in personal injury cases, family law, commercial litigation, immigration law, real estate law, and criminal defense. The Clackamas County Circuit Court is located at 807 Main St, Oregon City, OR 97045. He can be reached at [email protected]. View from the Bench Presenting Expert Witnesses in Litigation by Judge Thanh Tran 10 Trial Lawyer | Winter 2025
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