In the 1993 Supreme Court case “Daubert v. Merrill Dow Pharmaceuticals,” Justice Blackmun said for the unanimous court that an expert’s testimony has to rest on a reliable foundation and has to be relevant to the task at hand. He brought up the key consideration about whether the theory or technique used can be or has been tested and subjected to ‘peer review’ and publication.
Expert witnesses have seen their work rejected and their testimony excluded when they haven’t attended to Daubert standards of peer review.
Identify another specialist in your field that the court can treat as a peer. So if you are a biomedical engineer, another biomedical engineer would be a peer, and so on. Your attorney can retain this person to review your work, specifically your expert report. A peer reviewer would provide his own report of findings regarding the subject matter of your expert report. Yes, this may sound like double work, but an increasingly appropriate and valuable extra step. If another expert independently verifies the validity of your work, it will help to ensure the legal admissibility of that work. In addition, this extra step can bring extra credibility to your work. This will further support the relevancy and reliability of your work, opinion, and testimony.
The peer reviewer should submit his report directly to the law firm that engaged both of you. By and large, your attorney will submit your expert report, along with the peer reviewer’s report and a CV describing the peer reviewer’s background, training, and skills. You should not have any contact with the peer reviewer after the law firm retains him and before he submits his report back to them. Keep the points of this paragraph in mind because, from time to time, you may be hired in a case as a peer reviewer rather than as an expert witness.
Sometimes a peer review is called a third-party review, because the other party may not be a precise peer, but may still be a specialist in a related field of expertise. You should use such a third-party reviewer if part of your testimony includes information that is close to, but not specifically part of, your primary experience.
Judd Robbins has been an internationally recognized expert witness since 1986 in the US and in the UK. In 2010, his book “Expert Witness Training” was published by Presentation Dynamics. Robbins has advanced degrees from UC Berkeley and the University of Michigan, has been an Information Systems manager and an Education Systems manager, and consults in both computer and legal issues. Learn more about Mr. Robbins and his Expert Witness Training materials at www.juddrobbins.com