The use of expert witnesses in litigation has become so prevalent it is now routine. Often cases require the use of an expert to prove a prima facie case. For instance, without the use of a medical expert in a civil personal injury action, a plaintiff cannot prove past or future medical damages.

Other cases may not require the use of an expert, but it is still prudent to retain one. For example, in a criminal matter, a defendant may want to retain an expert who can testify to the unreliability of eyewitness identification.

However, occasionally, after having painstakingly considered the appropriate expert to retain, and after having expended considerable expense on that witness, an attorney may learn that the expert they retained is not appropriate for the case at all. This may occur for a number of reasons. Sticking with such an expert is like trying to put a round peg in a square hole – it will not fit. It is a mistake. Cut bait,  learn from your mistake, and seek out the right expert for your case.

To demonstrate, let’s discuss two separate scenarios where the attorney’s conviction may have doomed them and their client.

The first case involves a claim for lost career earnings. The plaintiff had been injured in an accident and claimed she could no longer pursue her dream career of joining the US Navy and becoming a pilot. After motion practice, this claim was allowed to proceed.

In support of the claim, the plaintiff wisely retained an alleged “Naval” expert who proposed to opine “to reasonable degree of medical certainty as to the eligibility and likelihood of the plaintiff in pursuing a career in the Navy as an Officer and Pilot and that the plaintiff met or likely would have met all eligibility requirements for Officer and Pilot in the Navy and likely would have been selected and had a successful career.”

While this attorney was smart to retain an expert in the field, the expert herself was not qualified by her background or experience. She was not a doctor, former naval pilot, former naval recruiter or had any experience in these matters. She had been a former naval officer and now operated a company where she assisted veterans obtain jobs. But that was the extent of her experience. A motion to preclude based on her lack of expertise was made and granted by the Court. A motion to renew and reargue the decision to preclude was denied. The issue is now on appeal.

The trial of this action has not yet occurred, and the plaintiff’s attorney still has the option of obtaining a qualified expert to opine on these issues. But instead, he is taking the issue to Appellate level intent on demonstrating he was correct. The more sensible approach would be to find a replacement expert, one who can in fact testify to what is needed.

The second example involves a medical malpractice action. The plaintiff in this matter purposely failed to exchange a 3101(d) Notice of Expert.[i] His rationale was that he was intending on putting on the  plaintiff’s treating physician during trial. A peculiar exception to this jurisdiction is that it allows a treating physician to testify to their observations and need for future treatment and causation, without an expert exchange.[ii] However, the jurisdiction does not allow a treating physician to testify to violations of standard of care.[iii] Further, the treating physician in this scenario did not specialize in the same area as the defendant doctor.

Instead of litigating the case correctly by obtaining the appropriate expert, the attorney protested that he was correct. This did not end well for the case as the treating doctor was precluded as to opining on the standard of care.

The moral of the above is that at times, we attorneys, like most people, misjudge certain situations. But when we have a chance to correct them, we should not allow our natural litigious tendencies to get in the way.

[i] In New York, an expert must be served properly pursuant to CPLR 3101(d) of the Civil Practice Law and Rules.

[ii] Duman v. Scharf, 186 AD3d 672 (2nd Dept. 2020); Kowalsky v. County of Suffolk, 139 AD3d 903 (2nd Dept. 2016); Hammer v. City of New York, 106 AD3d 504 (1st Dept. 2013); Jing Xue Jiang v. Dollar Rent a Car, Inc., 91 AD3d 603 (2nd Dept. 2012).

[iii] Norton v. Nguyen, 49 A.D.3d 927, 853 N.Y.S.2d 671 (2008).