What to do When the Experts Disagree?

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It’s not uncommon for multiple experts to be retained in a lawsuit including medical experts, forensic experts and accountants to name a few. What do you do when your experts disagree? Needless to say, this happens quite frequently.

Plaintiff experts have the task of defining the standard of care, which will serve as the basis of their opinions. Expert opinions, in general, are to be based on a reasonable degree of scientific certainty which in many areas of expertise, there is not a lot of science. Let’s say that you hire a forensic expert to provide opinions on a slip and fall case. You also hire a medical doctor to discuss your client’s injuries and their cause. Needless to say, it is likely that just based on backgrounds and level of training that they will probably come to different concluding opinions.

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There are no rules of the road when it comes to experts!

The standard of care is often based on the comprehensive body of published literature or nationally adopted consensus standards. The experts who can define the standard of care for their area of expertise usually have the high ground that all other experts have to address.

Although the field of medicine is rooted in science, medical doctors “practice” medicine for which each doctor has a different background and level of experience. A good example is a professional athlete who, like other players in their sport, is proficient at the game, but each brings a different element to the game. This concept of a team also applies to experts. Retaining experts who come from different areas of expertise but share a common scientific approach to their area of expertise makes for a winning team. Employing experts who bring more confusion will almost certainly doom your case.

So what if your experts disagree?

Back to our slippery floor example. Let’s say that your retained forensic expert concludes that based on his testing of the walkway in question, he found it to be hazardous and because of such was the cause of your client’s slip and fall event. However, your medical expert cannot state with certainty that your client’s injuries were the result of a fall, but rather was that of a pre-existing condition. This point is further bolstered by the defendant’s assertion that because they have not had any other slip and fall claim at that location, therefore, statistically speaking, the walkway did not present an unreasonably dangerous condition.

Which expert is right? The first question is to evaluate how and when did the forensic expert test the walkway in question. Did he test it shortly after your client fell or at a later date? If testing was performed months or years later it will be hard to conclude that the walkway, although slippery at the time of testing, was in fact slippery at the time of your client’s fall. A claim the opposing side’s retained expert will certainly make. So what do you do?

Compartmentalize each expert’s opinions.

Don’t overlap or combine your experts’ opinions if they appear to conflict. Medical doctors are not safety experts and just because your client’s injuries may not be typical, they are possible regardless of a pre-existing condition. The same is true for the defendant’s claims data. Just because no one else filed an injury claim does not mean that the walkway was safe. Also, your client may have indeed fallen as a result of a slippery floor which the forensic expert’s test results may not accurately reflect the level of safety of the walkway at the time of the fall, but speaks to the defendant’s history of floor safety. If the floor is slippery today, perhaps it was then as well!

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The medical expert’s testimony of a preexisting condition may be correct and when coupled with your forensic expert’s opinions demonstrate a “perfect storm,” whereby your client was at an elevated risk of a slip and fall. Examine each expert’s opinion individually and restrict them to their area of expertise. If your retained experts present what is seen as conflicting testimony at the time of trial, they will certainly confuse the jury resulting in a recipe for failure. Russell J. Kendzior

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