Retaining and Using Experts by Adam Heder, OTLA Guardian Things were going well at trial. Fantastically, in fact. Voir dire triggered productive and engaging conversations (and multiple dismissals for cause). Opening statement elicited countless enthusiastic nods from the jury. Our medical expert hit it out of the park. The pretrial rulings all went our way. And then, everything changed when our “environmental expert” took the stand. Our client alleged her home had become so unsafe it caused her permanent, life-altering injury. But when asked if the conditions at the home were in fact unsafe, the “environmental expert” hesitated for about thirty seconds — an absolute eternity on the witness stand — before finally answering that conditions weren’t “that bad.” On cross examination, when asked why she believed the home had water intrusions and contaminated air, the expert pointed at me and said, “because the lawyer told me so.” Say, what!? It was trial, so I did not have time to be speechless. I quickly refreshed the expert’s memory with portions of her file that reminded her it was she, not I, who concluded the home was rife with mold and contaminated air. She seemed to be in a daze, experiencing a familiar form of stage fright, unable to answer any of the questions I posed and willing only to give opposing counsel what he wanted. Upon having her memory refreshed, she quickly backpedaled and explained why she believed the home was, in her opinion, unsafe and uninhabitable. But by then, the damage was done. To the great surprise of nobody, the jury returned a defense verdict. Though I will never know exactly why the jury did what it did (I was unable to chat with any members of the jury afterwards), it is not a stretch to think that expert killed the case for us. If you do not already think expert witnesses are important, hopefully this story has now given you a healthy fear. I have been practicing for approximately 15 years. Most of my cases involve “mold related illness.” That is, I represent folks who have been injured by months or years of unknowing exposure to indoor mold and other contaminants in their home. I typically represent tenants suing their landlords for deferred maintenance or lack of habitability claims, though I occasionally also represent homeowners suing their builder/developer. In these cases, like in a malpractice case or really any personal injury case, our experts are so important. Though medicine has developed dramatically in the last 20 years, there are still some who claim the medicine behind mold illness is controversial. Toxic torts, indoor air quality cases, or “environmental” cases often also require testimony from some type of environmental expert, like an industrial hygienist, microbiologist or toxicologist, or environmental scientist. Though the science involved in these cases is not nearly as controversial as the defense bar would have people believe, we, nonetheless, face obstacles victims of car injuries, lead poisoning or other more “traditional” injuries do not. So, our credibility is crucial. And where credibility is so important, you cannot afford any expert that comes across as anything less than honest, legitimate, professional and having the utmost integrity. How do we evaluate credible experts? Sure, you can read their resume. Referrals are even better. But how much does a resume or a referral tell us? When assessing my own experts, I ask myself a series of questions: • Do I sincerely trust this person? • Would I trust them to treat my own child, my spouse or myself? • Would I trust this person with private, confidential information? • If my job depended on my giving my boss a recommendation for a doctor or environmental expert, would I trust this person to do the job well? ADAM HEDER practices personal injury law, with an emphasis on representing folks impacted by indoor mold and other toxic torts. Heder is a partner at the law firm of JurisLaw, LLP, Three Centerpointe Drive, Suite 160, Lake Oswego, OR 97035. He can be reached at [email protected] and 503-596-2920. 16 Trial Lawyer | Winter 2025
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