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Practice Tip: Deposition of Plaintiff's Expert

By Diane Fleming Averell

Two goals drive nearly all expert depositions: 1) lay the groundwork for a motion to exclude the witness's testimony; and 2) in the event the motion is denied, elicit testimony to fuel an attack on the witness's credibility at trial. Armed with the neatly packaged, enumerated criteria of Federal Rule of Evidence 702 and additional factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), practitioners dedicate weeks to breaking down the expert's written report systematically and crafting deposition questions that aim to establish:

  • The opinion is based on insufficient facts or data;
  • The opinion is based on unreliable principles or invalid methods; and
  • The witness failed to apply the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702.

Before getting lost in the four corners of the written report, however, you should address the following threshold questions: Who is this person? Is he/she actually qualified to offer this opinion?

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