Trial Lawyer In the Service of Justice Winter 2025 OREGON TRIAL LAWYERS ASSOCIATION Experts
“Dedicated to protecting people, holding wrongdoers accountable, and promoting a fair and equitable justice system through advocacy and education.“ ARTICLES In Our Voices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 by Deena Sajitharan Retaining and Using Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 by Adam Heder The Expert Witness in Your Next Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 by Rhett Fraser Tips from Four Doctors on How to Up Your Game for Trial ..................... 25 by Tim Grabe Oregon’s “Expert Privilege” Leaves Experts Unprotected at Trial . . . . . . . . . . . . . . . . . 29 by Dan Goldstein Biomechanical Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 by Sam Elder How to Make Expert Witnesses Interesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 by Gretchen L. Mandekor They Did What?! Analyzing Human Behavior from a Human Factors Perspective ................................................. 44 by Dr. Nancy Grugle Toxicology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 by Kenn Meneely Case Selection: Utilizing Experts in Medical Malpractice Cases . . . . . . . . . . . . . . . . 51 by Blair Townsend DEPARTMENTS President’s Message: We Are Professionals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 by Melissa Bobadilla Annual Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 View from the Bench: Presenting Expert Witnesses in Litigation . . . . . . . . . . . . . . . 10 by Judge Thanh Tran OTLA Guardians of Civil Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Comp Corner: Deadlines for Hearing and Board Orders . . . . . . . . . . . . . . . . . . . . . . . 54 by Julene M. Quinn Between the Sheets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 by Cody Hoesly, Elizabeth Savage, Nadia Dahab The views expressed in Trial Lawyer are solely those of the authors and do not necessarily reflect the policies or opinions of the Oregon Trial Lawyers Association, its members, Board of Governors or staff. Trial Lawyer is a quarterly publication of the Oregon Trial Lawyers Association and is distributed as a membership benefit. For permission to reprint articles, contact Dorina Vida at 503-223-5587 x111, [email protected]. For advertising rates, contact Ronnie Jacko at [email protected]. Publications Committee Co-Chairs — Barb Long, [email protected]. 503-228-9858; Faith Morse, [email protected], 541-362-4725 Editor — Dorina Vida, 503-223-5587 x111, [email protected] Oregon Trial Lawyers Association, 812 SW Washington Ste. 900, Portland OR 97205, 503-223-5587, [email protected], www.oregontriallawyers.org Trial Lawyer In the Service of Justice Winter 2025 OREGON TRIAL LAWYERS ASSOCIATION BOARD OF GOVERNORS Officers President: Melissa Bobadilla President-elect: Brent Barton Secretary-Treasurer: Rob Beatty-Walters Parliamentarian: Ron Cheng Immediate Past President: Rob Kline District Governors Talia Guerriero — District 1 Mona Moghimian — District 1 Tim Williams — District 2 Blair Townsend — District 3 Jovita Wang — District 3 Derek Johnson — District 4 Lara Johnson — District 4 Erin Christison — District 5 Sonya Fischer — District 5 Governors-at-Large Cody Berne Shannon Conley Keith Dozier Ronn Elzinga Mark Ginsberg Chris Hill Quinn Kuranz Lowell McKelvey Jennifer Middleton Jeremiah Ross New Lawyer Governors Ashley Rosenbaum-DePalo Emily Johnson AAJ Governors Nadia Dahab Tom D’Amore Shenoa Payne AAJ State Delegates Ryan Jennings Michael Wise Ron Cheng OTLA Staff Email, (firstname)@oregontriallawyers.org Main phone, 503-223-5587 Amy Anderson, 503-223-5587 x113 Annual Partner & Development Director Kathleen Bergin, 503-223-5587 x108 Membership Director Beth Bernard, 503-223-2558 Chief Executive Officer Mac Hubbard, 503-223-5587 x102 Education Director and Project Coordinator Cassie Purdy, 503-223-5587 x115 Political Director/Lobbyist Dorina Vida, 503-223-5587 x111 Communications Director
President’s Message We Are Professionals by Melissa Bobadilla, OTLA Guardian Did you know that OTLA has a code of conduct? You can find it on OTLA’s website. As OTLANs, when signing up to attend any OTLA event — be it a social gathering, the annual convention or a CLE seminar — we are asked to adhere to this code. I appreciate the code for providing the standards for all members to follow. It serves as a vital reminder we are professionals, and, even in casual settings with family and friends, it’s essential to uphold our standards of conduct. Recently, as I revisited the code, I was reminded that professionalism is something we should aspire to year-round. As you serve your clients and build your practice, here are some helpful reminders: Integrity We all understand the importance of honesty and integrity with our clients, but these values also apply to interactions with colleagues and the court. In law, as in many professions, reputation is key. In Oregon, especially within specialized areas, you will be known by your reputation. Upholding honesty, integrity and professionalism in all interactions helps build a strong reputation. Refrain from ridiculing others, whether in writing or verbally. Disparaging opposing counsel is not the Oregon way. Often, a simple phone call can resolve issues more effectively than emails or messages. Picking up the phone to make phone calls is still okay. Communication How we interact with others sets a tone. Clarity is key when communicating with the court, colleagues, opposing counsel, co-counsel, adjusters and staff. In an era where many are working from home and navigating different time zones, it’s crucial to clearly define and communicate your office hours and working days. This helps others know when they can expect to reach you or your team. Share with others how you prefer to be reached — email, text message, phone. Figure out your preferred method of communication and let others know — including your clients. Responding to emails promptly is crucial. A simple “thank you” or a “get back to you soon” can go a long way on any email you can’t get to right away. Consistency in your response times is equally important — decide whether you will reply within 24 or 48 hours and stick to that standard. Implement a system to manage your communications effectively. Remember, non-responsiveness can come across as unprofessional. Whether you’re working from home or abroad, you have a responsibility to respond in a timely manner. The way we engage with others establishes a vital tone for our professional relationships. Remote Work Environment Maintaining a professional image is essential, even when working remotely. It’s important for clients and colleagues to perceive you as professional, regardless of your physical location. Consider what others see/hear when you’re on a video or phone call and take the time to test your setup. It’s essential to put effort into both the visual and auditory aspects of your environment. For example, on a phone call, make sure your background is quiet and conducive to confidential conversations, particularly when discussing client-attorney matters. If you are holding a video conference call (e.g., WebEx, Zoom, Teams), choose attire that reflects your professionalism, create a tidy and appropriate background that incorporates good lighting. Invest in a quality microphone to ensure your voice is clear, check to make sure you have a strong and reliable Wi-Fi connection to avoid disruptions. Finally, if you share the space with others, such as a home, have a plan in place to ensure your area remains quiet and free from disruptions during meetings. MELISSA BOBADILLA specializes in personal injury law, handling cases ranging from everyday car crashes to catastrophic injuries occurring on or off the job. She has developed a niche in assisting vulnerable clients who have suffered severe injuries or lost loved ones seeking immigration relief. She is a Guardian Club member. Bobadilla is the sole practitioner at Bobadilla Law, PC., 4915 SW Griffith Drive, Ste 200, Beaverton, OR 97005. She can be reached at [email protected] and 503-496-7500. 4 Trial Lawyer | Winter 2025
See President’s Message p. 6 By paying attention to these details, you can project a professional image that fosters trust and respect in your remote interactions. Appearance While casual and business-casual attire has become more popular, the expectation remains that lawyers and their staff will dress formally, much like the portrayals we see on television. Casual wear is acceptable in court, as long as it still appears professional. Today’s fashion allows for casual clothing to be easily elevated. For example, a nice pair of jeans can be paired with a stylish blouse from retailers like Target or Costco. I do it myself. Having a jacket in your office can also quickly transform a casual outfit — consider hanging one on the back of your door for easy access. It’s important to guide your staff on your office dress code and appropriate attire for court. Don’t assume they’re aware of these expectations. I offer my team a yearly clothing allowance to help them update their wardrobes. This investment is appreciated by staff and helps us maintain a professional yet approachable image that clients value. Time Respecting others’ time, especially that of your clients, is essential. Time is invaluable because it cannot be regained. Whether in-person, on the phone or via video call, always strive to start promptly. In my office, we have a practice of initiating a video call five minutes before the scheduled start 5 Trial Lawyer | Winter 2025
time. If a meeting is set for 11 a.m., there’s no reason it shouldn’t begin right at 11. We also set an end time for each meeting and end the meeting early or on-time. In today’s fast-paced world, time is more precious than ever. Starting and ending meetings on time shows respect for others’ schedules. Many have commitments outside of work. Let’s prioritize punctuality and value everyone’s time. Confidentiality As attorneys, it is essential for us to uphold client confidentiality, particularly regarding privileged communications. However, we must acknowledge that true confidentiality can be elusive. List servs are not entirely secure. Neither are text messages or emails. My advice? Avoid putting anything in writing, anything you do not want anyone and everyone to read. Instead, consider using traditional communication methods such as phone calls. Some things never go out of style. Getting Along Treat all clients, colleagues and other individuals with respect, irrespective of their backgrounds, beliefs or areas of practice. Although the legal profession can be adversarial, this does not justify rudeness. Cultivating respectful relationships not only enhances our effectiveness, but also allows us to perform our duties competently. The golden rule — treat others as you wish to be treated — continues to hold true in our work and personal lives today. Alcohol and Cannabis Alcohol consumption plays a significant role in our profession and it deserves open discussion. I appreciate that the OSB has addressed this issue early in our careers through the “Learning the Ropes” program. Today, the conversation has expanded to include substances like cannabis. Many of us have witnessed colleagues whose excessive drinking has led to regrettable incidents. Alcohol was often seen as the go-to-choice for celebrating trial outcomes and relieving stress. If you choose to drink, please do so responsibly and maintain control, as a single lapse in judgment can tarnish your professional reputation. Don’t let that happen to you. In Oregon, we are fortunate to practice law in a unique environment. While the profession can be demanding, getting along with others makes it a lot easier to practice law. Let’s remind one another that, in Oregon, collaboration is valued. It’s perfectly acceptable to have friends on the opposing side. Ultimately, we are professionals, and we must conduct ourselves with the integrity and respect our roles demand. President’s Message continued from p. 5 “As attorneys, it is essential for us to uphold client confidentiality, particularly regarding privileged communications. However, we must acknowledge that true confidentiality can be elusive. List servs are not entirely secure. Neither are text messages or emails.” 6 Trial Lawyer | Winter 2025
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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
If opposing an expert, pre-trial preparation should include a motion to have the expert’s complete file available for review the day before their trial testimony. While not all trial courts will require disclosure the day before testimony, such a request is reasonable and may be granted, especially if one is allowing the same disclosure for their own witness’s file. Similarly, counsel may be wise to preemptively request sanctions or other relief, if the expert does not comply with the court’s order and does not make their complete file available prior to testimony. In one case, it became apparent an expert had not brought their entire file for review by opposing counsel, instead only providing their report and key documents. While it was apparent opposing counsel was at a disadvantage, and likely prejudiced, they failed to request relief for the expert’s failure to share the entire file. The trial judge may be more inclined to grant a motion for sanctions or relief, as they tend to disfavor a party or witness who does not comply with court orders. Payment: Will It Affect Jury Perceptions? Under OEC 401 (ORS 40.150) and 609-1 (ORS 40.360), evidence may be introduced to impeach a witness for bias or interest if the evidence has a mere tendency to prove such bias or interest. This standard for relevance and admissibility is relatively low, so opposing counsel may attempt to introduce evidence of an expert’s financial gain from testifying. Attorneys may believe jurors will be suspicious of high fees and may argue the expert is not truly impartial or simply a “hired gun.” To combat the appearance of bias, the proffering attorney should ask the expert to explain how their fees are commensurate with their experience, the complexity of the case, and their time and expertise. If this occurs during direct examination, it can preemptively address and deflate any attacks on the expert’s bias or motive. The ease with which an expert’s compensation is presented does not necessarily mean it will be persuasive to jurors. By definition, an expert provides information or opinions that would be helpful to the jury OEC 702 (ORS 40.410). Thus, jurors understand experts are someone who has the knowledge, education and experience beyond their own. Jurors are aware expertise comes at a cost. So, attacking an expert’s compensation is unlikely to be persuasive unless the amounts charged are unreasonable. For example, opposing counsel attacked an expert’s high hourly rate for file review and the flat rate for trial testimony. On re-direct, the offering attorney allowed the expert to explain how they arrived at their hourly rate (the same as their peers) and flat rate (due to closing their practice for the day of trial). The attack on the expert’s fees was unpersuasive. Persuasion: Admitting Limitations to Build Credibility An effective expert witness must do more than just deliver an opinion—they must be persuasive. One of the most effective ways to build credibility with the jury is by having the expert acknowledge the limitations of their analysis or findings. See View from the Bench p. 12 11 Trial Lawyer | Winter 2025
While OEC 703 (ORS 40.415) and OEC 705 (ORS 40.425) allow testimony on the basis of the expert’s opinions and the disclosure of underlying facts or data, this can also be used to recognize or emphasize the limitations of the expert’s testimony. Jurors are often skeptical of experts who overstate their certainty or seem inflexible. By contrast, an expert who acknowledges the limits of their conclusions—such as admitting when data is inconclusive or when alternate interpretations are possible—can earn the jury’s trust. One such instance occurred when an expert testified about technology for metadata in photographs (indicating the location and date/time the photo was taken). On cross-examination, opposing counsel pointed out the new iOS operating system allowed users to change the location and date/time of the photo. The expert reluctantly testified that manipulation of the metadata was possible with the photographs in question. Ultimately, the expert gained credibility with the jury by conceding the flaws in their opinions. Conclusion Expert witnesses can significantly bolster your case, but only if they are carefully prepared, properly presented and strategically utilized. By anticipating objections to foundation, managing jury perceptions about compensation and using candor to build credibility, attorneys can maximize the impact of expert testimony. As always, a thoughtful and strategic approach will yield the best results. View from the Bench continued from p. 11 “[A]n expert who acknowledges the limits of their conclusions — such as admitting when data is inconclusive or when alternate interpretations are possible — can earn the jury’s trust.” 12 Trial Lawyer | Winter 2025
In Our Voices by Deena Sajitharan “In Our Voices” is a column published in each edition of Trial Lawyer featuring members from underrepresented communities and their personal stories. These personal stories focus on adversity encountered, perceptions, general thoughts with the hope of bringing awareness to the larger legal community. During a visit to our homeland, Sri Lanka, when I was barely a few months old, my mother held me close to her chest against the backdrop of bombs exploding as she ran away from government soldiers, artillery and tanks. The very beginning moments of my life were anything but peaceful. British imperialism in Sri Lanka resulted in decades-long civil war, which began in 1983 and ended in 2009. The ethnic unrest on the island was caused primarily by tensions between the Sinhalese, the majority, and Tamils, a small minority, to which my family and I belong. Although my family and I returned safely to Nigeria, our new homebase, the same can’t be said about the approximately hundred thousand Sri Lankan Tamils who were killed during the civil unrest, including my father’s sibling. I was born in Lagos, Nigeria and lived most of my childhood in America, but my passport reads “Sri Lanka.” For most of my life, I lacked a true sense of national identity. A few years after graduating college, I took my Oath of Allegiance and became a United States citizen. That process was pivotal in shaping my desire to pursue law. I not only began to identify myself with one nation, the United States, but I also began to recognize the ways in which the laws of a nation vastly affect the lives of its citizens. From a young age, I knew I wanted to commit myself to a career with the primary objective of acting in the service of others. My earliest memories are filled with trips to the hospital to attend to various health issues associated with my mother’s pregnancy with my younger sister. As a young girl, it was hard not to internalize my mother’s struggles. I only wanted to make things easier for her. My father did too. He had already dedicated his entire adult life to improving the lives of his family members and his immediate family by working in Saudi Arabia to provide for his mother, brothers and sisters in Sri Lanka, and furthering his education in England. After first settling in Nigeria, where we lived for eight years, my father then relocated our immediate family — my mother, sister and I — to the United States as the foreshadowing of civil unrest in Nigeria began to take shape; a story he was already far too familiar with. In August of 1993, we landed at John F. Kennedy Airport in New York City. We had finally arrived to the cliched “land of opportunity”. My initial academic interests began with the pursuit of medicine and science. I worked for six years as a medical researcher studying autoimmune diseases, cancer, heart disease, traumatic brain injury and addiction. Medical science can have far-reaching effects, but the work often felt abstract and impersonal. Even in scientific pursuits, laws govern not only how progress is made, but also how it is applied. Just as I understood medicine to be a tool that can be used to improve lives, I came to understand the same truth in the law. Looking back on our time in Nigeria, I can clearly see how many of my mother’s health issues were prolonged by her inability to receive adequate and proper treatment, which Nigeria’s poor medical infrastructure simply could not provide at that time. Medical professionals are a vital part of society, but their efficacy is tied to the laws governing that society — a fact reflected by the current discussion of health care reform in our own national discourse. This ability of the law to affect lives on a macro level was the biggest driving force behind my decision to enter the legal field, specifically the field of medical malpractice and civil rights. “Education is power.” These are words my father often repeated to me as a child and continues to repeat to this day. DEENA D. SAJITHARAN practices exclusively in plaintiff’s personal injury. She specializes in medical malpractice and civil rights cases, as well as pedestrian and bicyclist injuries. She is an associate in the firm of Pickett Dummigan Weingart LLP, located at The Centennial Block, 210 SW Morrison St., 4th Floor, Portland, OR 97204. She can be reached at [email protected] and 503-575-9731. 14 Trial Lawyer | Winter 2025
When I think of my life as a Sri Lankan political refugee immigrant living in the United States, the word “privilege” is a word that shapes the fabric of my life. “Privilege” is an overused word permeating our modern vernacular and is often tethered to the existence of white or rich individuals. And yet, it is privilege through education that opened doors, which granted my father the opportunity to escape an active civil war and genocide of the Sri Lankan Tamils, providing an escape plan for his wife, daughters and generations yet to come. Many who see me or learn of my story often assume I had little to no privilege in my life, or I suffered as a result of being a woman of color and an immigrant whose family was forced to flee their home and uproot their lives to move to Africa, and then eventually to the United States, a place where many now feel lacks the opportunities it once provided. But nothing could be further from my truth. At its core, my privilege comes from my very first teachers and the most powerful advocates in my life: my father and mother. I recognize, daily, the opportunities they provided for me by taking the risks they took in the betterment of our lives. In turn, through my work, I hope to continue that trend (albeit a different kind) for my clients who often come to me during the worst moments of their lives when their physical and mental suffering has reached its peak. Serving clients in my practice as a medical malpractice and civil rights attorney forces me to face the everyday reality that gun violence, cruel mistreatment of people in custody, poverty, oppression, social injustice, and the inability to advocate for one’s health and body are not merely symptoms of developing countries but also exist right here in the United States. Revolutions require academics, fighters, advocates, visionaries and campaigners. It requires that people use the tools of their oppressors to fight back. I know this, not because I can abstractly understand these constructs, but because my family experienced that amplified and tragic reality in our homeland. My work has allowed me to use all these life experiences – generational trauma, opportunity and legal education – to influence the system and fight for people with little or no power against powerful institutions. I am a living example of the difference an unwavering advocate can make at a pivotal time in one’s life. I am deeply grateful to be working in a profession where I can be that advocate for individuals who simply need someone to help them fight their battles. This revolution renews each day when we walk into our offices, sit down at our computers, orate in a courtroom and converse with our clients. Don’t ever forget the privilege and power we wield. I know I don’t. I am deeply grateful to be working in a profession where I can be that advocate for individuals who simply need someone to help them fight their battles.” 15 Trial Lawyer | Winter 2025
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
• Is this person engaging or is their “bedside manner” so obnoxious that I would never want to spend a minute more with them than necessary? • What are their billing practices with me like? • Are they disorganized and are their invoices full of billing errors? If so, they are probably not somebody whose integrity I can trust. • When we first meet, either over the phone or video, do they maintain their integrity? • Do they simply say what they think I want them to say? • Or will they aggressively push back and tell me when I have something wrong? You must have somebody willing to do the latter. You never want someone who will simply mimic your opinion. How to Maintain Good Experts Evaluating an expert is more art than science. There will be mistakes along the way. But once you find experts you trust, treat them well. Pay their bills. You cannot risk an expert that is grumpy and not getting paid. Provide them with what they ask, when they ask it. Defer to their knowledge, but be prepared to direct the presentation. In other words, if they are using demonstratives or slide shows, make sure they make sense See Retaining and Using Experts p. 18 17 Trial Lawyer | Winter 2025
to you. If you don’t understand a part of their presentation, press your expert to re-word, re-work and re-articulate until a 10-year-old can understand it. If you, the lawyer, cannot understand it, that doesn’t foreshadow a good outcome. If the presentation is clunky or too esoteric, you need to work closely with your expert to iron out those wrinkles. Also, do not be afraid to change boats mid-stream. If you begin to doubt your expert’s integrity, their organization or their ability to effectively present their material, remember the economics law of sunk costs: it is irrelevant how much you paid for that expert up to this point. If you have too many doubts, then all those costs are sunk costs and are irrelevant to your future consideration. I recently had an expert who I had paid tens of thousands of dollars. But her work product was consistently late, her billing errors were significant and her file organization left something to be desired. It was painful to abandon the time and investment I had put in that expert, but I realized there was no way I could go to trial with her when I did not even trust her to send me a report from the correct case. So, we switched. And boy what a difference it made! Investing in Experts Early There are ways we can cut costs and save money prosecuting our claims. Going cheap on our experts is not one of them. The best experts are not always the most expensive (I know this from experience), but the best experts are also rarely cheap. In the end, it also pays off to invest money in quality experts early in the case. It can be painful to invest tens of thousands in experts where we think the case may settle before we even disclose the experts. But that is the deal we signed up for and having those experts on board early will increase your confidence when you mediate or otherwise negotiate a settlement on the case. If you are having trouble affording those upfront costs, find somebody to co-counsel with. Find a way. There is much more to say and even more to debate. There are many others who understand and have refined these principles much better than I. Others will no doubt have much to say or criticize about what I’ve written. Listen to them. They likely have much wiser words than I. If nothing else, I can pass along this simple checklist: • Find your experts early • Evaluate them thoroughly • Pay them on time • Do not despair the upfront costs (because it will almost always pay for itself) • Never, ever underestimate what they bring to your case. You will not regret it. Retaining and Using Experts continued from p. 17 “If you begin to doubt your expert’s integrity, their organization or their ability to effectively present their material … it is irrelevant how much you paid for that expert up to this point. If you have too many doubts, then all those costs are sunk costs and are irrelevant to your future consideration.” 18 Trial Lawyer | Winter 2025
The Expert Witness in Your Next Trial by Rhett Fraser, OTLA Guardian If you wanted to learn about rocket ships, who would you consult: your next-door neighbor or a NASA engineer? Unless your neighbor has some truly remarkable qualifications, you would probably pick the engineer. Why? Because, presumably, getting the right information is important to you and the engineer is an expert. For the same reason, trial attorneys use expert witnesses in many different types of civil trials. Civil trials frequently are very complex and highly technical. For those of us who represent injured parties in medical negligence cases, it’s not enough for us to assert to a judge or jury that our client is badly hurt and deserves compensation. We must explain the “how” — which is generally very technical — to the jury by connecting the dots. Expert witnesses allow us to make those connections. Expert witnesses play a pivotal role in bridging the gap between technical expertise and legal standards. They can explain, for example, why a doctor’s action that looks ostensibly reasonable on its face is actually negligent. That expert’s explanation is even more essential when the plaintiff’s medical condition may be unfamiliar to the jury — like a failure to diagnose an uncommon medical condition — or involves a surgical procedure. Finding the Right Expert The ideal expert possesses extensive knowledge enabling them to interpret the issue at hand, has impressive credentials, and an impeccable ethical reputation. The witness must also be able to explain complex concepts clearly to lay people and should be personable and engaging — someone a jury wants to listen to. Nobody likes an arrogant expert. Who can serve as an expert can often be as broad as the imagination of the lawyer handling the case. Under ORE 702(1) an expert witness is a witness with specialized or technical knowledge, skill, training or education who can assist the trier of fact to understand evidence presented or determine a fact in issue by way of opinion testimony or otherwise. An expert witness can provide their opinions, especially regarding their field’s standard of care or practices. “Expert testimony” is often used by courts and lawyers as a short expression for opinion evidence given by a witness who has been qualified as an expert in the particular field of inquiry involved in the litigation. OEC 702; McKee Elec. Co. v. Carson Oil Co., 301 Or 339, 350 (1986). When looking for an expert witness for a professional negligence case, your expert witness must be familiar with the situation that occurred, the relevant records and the professional standard of care. The process of selecting and preparing an expert witness can be time-consuming and quite costly. Attorneys must ensure the expert’s qualifications and testimony align with the legal standards required by the court, and they must also prepare the expert to withstand cross-examination effectively. Spending money up front to have an expert tell you what you don’t want to hear can ultimately save you a lot of time, money and grief down the road in avoiding taking on a case where you should have taken a pass. There are many ways to locate great expert witnesses for the specific facts of your case. Scholarly articles or journals frequently contain articles on a variety of subject matters and you can contact the authors. Talk to other lawyers in the community about who they retained on other similar cases. Consult your professional networks such as OTLA or AAJ or search their listservs. Attend conferences about subject matters that frequently arise in your cases. Look for jury verdict publications such as Jury Verdicts NW that frequently list experts from other recent trials. There are excellent companies that exist to help connect you with specific quality experts, e.g., OTLA Annual Partner Expert Institute. Finally, in personal injury cases, there are no more credible experts than your client’s own medical providers. RHETT FRASER practices personal injury and medical malpractice in Oregon and Washington. He is a member of OTLA Guardians. Fraser is the owner of The Fraser Law Firm, 101 SW Main Street, Suite 1900, Portland, Oregon 97204. He can be reached at [email protected] and 971-266-8877. 20 Trial Lawyer | Winter 2025
The Admissibility of Expert Testimony The admissibility of expert testimony is governed by three general constraints. First, expert testimony must be relevant. OEC 401, 402. “Having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Second, expert testimony is subject to OEC 702: “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert may testify thereto in the form of an opinion or otherwise.” Finally, expert testimony must not be unduly prejudicial, confusing or time-consuming. OEC 403. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.” See The Expert Witness in Your Next Trial p. 22 “The process of selecting and preparing an expert witness can be time-consuming and quite costly. Attorneys must ensure the expert’s qualifications and testimony align with the legal standards required by the court, and … prepare the expert to withstand cross-examination effectively.” 21 Trial Lawyer | Winter 2025
More succinctly, in evaluating the admissibility of expert testimony, the court “must identify and evaluate the probative value of the evidence, consider how it might impair rather than help the factfinder, and decide whether truth-finding is better served by exclusion or admission.” State v. Brown, 297 Or 404, 409 (1984). Vetting and Preparing Your Experts Vetting your experts is important. Meet face-to-face if you can and review their resume and any literature they have published thoroughly. Meeting with experts in person helps establish trust and ensures they not only understand what you will be asking them on direct examination, but also how they may be challenged on cross-examination. Take the time to educate the expert about your theory of the case and make sure they understand how the law applies to the facts of your case. For example, doctors may understand the medicine but not how the law favors your client’s position. Educating your expert witness on supportive legal concepts such as UCJI 70.06 (Previous Infirm Condition), UCJI 70.07 (Aggravation of Preexisting Injury or Disability), or Res Ipsa Loquitor can be important. Challenging Defense Expert Witnesses Challenging the defendant’s expert witnesses is just as crucial to winning your trial as retaining your own strong experts for your case. An early line of attack is to seek to exclude expert testimony based on the applicable court standards for admissibility. This can be done via motions in limine or an OEC 104 hearing to succeed on your motion — ask for it. This entails a preliminary hearing before the court without the jury to determine the qualifications of a witness to testify, the admissibility of certain evidence or whether the expert is qualified to testify. The questions go to the competence of the witness to testify as an expert and/or the reliability of the methodology or data used by the witness to arrive at their opinion. Cross-Examining Defense Experts Cross-examination of experts can be challenging. Expert witnesses come to court to provide opinions, not just to testify as to the facts, because they can help the jury understand some important aspects of the case. Opinions are squishy and are moving targets; they are harder to cross-examine and pin down than concrete facts. An effective cross-examination tells the jury a story and explains to them why the expert’s opinion is not credible and should not be believed. The question to answer is: what am I trying to tell the jury with this cross-examination? You need your cross to be short and sweet but devastating. Go in with a game plan and know the points you want to make. A cross-examination that results in the expert being allowed to simply repeat most of what they just said in direct examination is a terrible approach. If you don’t feel confident, The Expert Witness in Your Next Trial continued from p. 21 22 Trial Lawyer | Winter 2025
keep the cross-examination short and use your own expert to address the other side’s anticipated expert’s testimony. It is critical to control the expert’s responses by keeping your cross-examination focused. Allowing the expert to opine with open-ended questions can result in the expert displaying to the jury their expertise and credibility on the subject, and running a replay of all the same harmful testimony they just offered in direct examination. Instead, if you can attack the expert collaterally as being unprepared, over eager, stretching the truth, or biased, it can often be more effective to get the jury to become suspicious of the witness’s entire testimony. Some fruitful areas of attack: • Is the expert honest but mistaken? • Is the expert purposely exaggerating or shading their testimony? • Is the expert relying on a faulty factual assumption? • Did opposing counsel provide insufficient or incomplete material to form their opinion? • How often does the expert testify for only one side? • Is their income contingent on getting the “right” answer repeatedly in other cases? • How often have they testified for this same defense attorney or law firm? With few exceptions, the expert will be far more knowledgeable on the subject matter than the attorney tasked with cross- examination. It is important not to come across as a junior doctor or amateur accident reconstructionist. The cross- examining attorney can find themselves wading into technical areas in which the expert’s knowledge is far superior. That is why it is critical to prepare and plan the attack long before stepping into the courtroom. Be careful shooting it out with “old hand” experts and hired guns. Some professional witnesses or experts are always hired to come to say the same things. These witnesses have chewed up many cross-examiners. They keep coming back to court because they are so effective. If you are not careful, and you halfheartedly go after the witness on bias, you’ll get answers like “I’m just here to tell the truth the best I can as an epidemiologist” or “I’m not testifying for or against anyone, I just call balls and strikes.” Point out to the jury the assumptions the expert relied upon. Experts typically do not have personal knowledge of the facts of the case. Rather, they often rely on facts provided by the hiring attorney, and the experts generally are basing their opinions on the assumption that those facts are true and the material they were provided to review was complete. It may be easier to attack the facts the expert is assuming to be true or an incomplete expert file, rather than risk a deep debate with the expert about their area of expertise. This is particularly true if the expert’s track record and qualifications See The Expert Witness in Your Next Trial p. 24 23 Trial Lawyer | Winter 2025
are beyond reproach. Ultimately, if the expert is shown to have relied on facts that are not true, their opinions may no longer be credible or reliable. Some expert testimony can be meticulous, highly technical and, to some jurors, downright boring. It is crucial to pick the three or four best cross-examination points and stick to them. An overly long and confusing cross-examination runs the risk of boring the judge and the jury and, perhaps most critically, could end up hiding the most important points of cross-examination. Remember, juries are like an empty cup being filled with too much extra water. Once the cup runneth over, the jurors will be unlikely to remember and hold excess information. One way to build upon the cross-examiner’s theory is using cross-examination by a collateral attack, focusing less on the case at hand, and more on the expert and their potential biases. The experts’ financial bias is a common ground for a collateral attack. The expert is, after all, providing their opinion on behalf of a party for money. This line of questioning is to show the expert is not an objective expert simply teaching the jury the subject matter as if they are a professor in a classroom, but rather a hired gun for opposing counsel to mislead the jury. There is debate whether juries really care about this type of information as much as we may think they do, and they even may conclude that if the expert gets paid a surprisingly high amount to testify, they must really be a very qualified expert! You’ll have to make an independent judgment call in how you approach each cross-examination. Do Your Own Research If the expert has a website or has published material in the past, go get it and read it. Look for YouTube videos or damaging material they’ve written in the past or contradictory testimony in previous transcripts. You will often be amazed at what information you can find on the expert’s own website or from a deep-dive Google search. One recent defense expert stated she was a “nationally renowned” medical expert despite only being out of medical school for three years. Your goal is to create a firm impression: here is a biased, suspect or untrustworthy witness. In short, the ideal expert has extensive knowledge enabling them to interpret the issue at hand, impressive credentials and an impeccable ethical reputation. The witness must also be able to explain complex concepts clearly, and should be personable and engaging — someone a jury wants to listen to. It is not good enough to have just any “expert,” because you can be certain opposing counsel will have experts of their own. In complex personal injury cases, the side with the most credible expert medical witnesses, and the most prepared and focused cross-examination usually wins the day. The Expert Witness in Your Next Trial continued from p. 23 24 Trial Lawyer | Winter 2025
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