By James J. Mangraviti, Jr., Esq.
An expert witness’s opinion can be excluded under FRE 702 if the opinion is not the product of reliable principles and methods; or if the expert’s opinion fails to reflects a reliable application of the principles and methods to the facts of the case. Even if counsel fails to have an expert’s opinion excluded, the expert’s methodology will still be highly relevant to the weight to be given to the testimony. It is therefore important that counsel be familiar with expert witness deposition questions on methodology.
Please consider the following example of expert witness deposition questions on methodology from the case of Stasior v. National Railroad Passenger Corp., 19 F.Supp.2d 835 (N.D. Ill. 1998). The below is the transcript of a portion of the lengthy deposition of a highly regarded ergonomist.
Example: Expert Witness Deposition Questions on Methodology
Q: Did you quantify the number of key strokes per minute the reservation sales agents perform at the Chicago facility?
A: No.
Q: Do you know if Miss Stasior was using this wrist rest in 1991 and prior to that time?
A: I don’t believe she was but I also know they had different keyboards at that point and I’m aware that keys would malfunction and I have—it’s been reported to me that the keyboards that they had prior to the ones they have now were—required more force.
Q: Do you know when those keyboards were used?
A: No.
Q: As you sit here today, Doctor, can you tell me what keyboard Miss Stasior worked on and for what period of time she worked on it?
A: No.
Q: Do you have any idea if that’s what the job looked like and how she performed it in 1991 and prior to that time?
A: There was different equipment, but no.
Q: Let me interrupt you for a minute. You say there’s different equipment. We might as well cover this while we’re sitting here right now. Do you know the dimensions of the different equipment?
A: No.
Q: Do you know the height of the different equipment?
A: No.
Q: Do you know the height of the desk?
A: No.
Q: Do you know the width of the desk?
A: No.
Q: Do you know the height of the different chair?
A: No. They certainly didn’t in the video and she said that’s been her customary work posture. But prior to ‘91, no, I don’t know.
Q: Do you know if she ever requested any different equipment prior to 1991?
A: No.
Q: Do you feel you have visited the Amtrak reservation sales office for a sufficient length of time in order to render opinions in this case?
A: Yes.
Q: How long was your visit at the Amtrak reservation sales office in January of 1997?
A: Don’t know.
Q: Are you aware of any of the personal risk factors that Miss Stasior has which have been identified as having an association with carpal tunnel syndrome?
A: No.
Q: Did you feel it necessary to determine if she had any personal risk factors in arriving at your opinions in this case?
A: No, not once I looked at her job and her normal working position and the lack of ergonomic training, no.
Q: Did you quantify—and I apologize, I may repeat a little bit here—did you quantify the length of time Miss Stasior would spend with her wrists in a non-neutral position during the day?
A: No.
Q: As you sit here today, do you know for a fact what type of keyboard Miss Stasior was using in 1991 and before?
A: I do not know for a fact.
Q: As you sit here today, do you know for a fact what chair she was using in 1991 and before?
A: It’s not relevant.
Q: So, in your opinion her job caused her condition?
A: From a[n] ergonomic perspective, yes.
Q: Tell me the methodology you used to reach that conclusion.
A: Well, I think we went—she was exposed to multiple risk factors.
Q: Which you did not quantify, right?
A: Don’t have to.
Q: They’re just there?
A: Yah.
Q: No matter what degree, they’re there, that’s enough.
A: We don’t have thresholds.
Q: Do you have any idea what the prevalence rate of carpal tunnel syndrome is with not only the Amtrak—well, I’ll limit it to the Chicago office with the reservation sales office.
A: The prevalence with—no, I don’t.
Q: Do you have any idea what the prevalence is with the various reservation sales offices around the country for Amtrak?
A: No.
Q: Would that be a significant thing to know in determining whether or not the job caused carpal tunnel syndrome?
A: No.
Q: Is there any way to test your opinion that Miss Stasior’s job caused her carpal tunnel?
A: Test it? Well, I think you can validate it by looking at what other industries have done as far as—and compare that to what Amtrak did not do.
Q: Can you tell me if they did provide the information she would not have developed carpal tunnel syndrome?
A: Well, I can tell you—I can say the probability would be reduced.
Q: But you can’t tell me how much?
A: No.
Q: Have you in fact tested your hypotheses that Miss Stasior’s work contributed to her carpal tunnel syndrome in any way?
A: No.
The court rejected the above deposition testimony, finding that it was not admissible. As seen in the above example, deposition questioning on methodology can be particularly important as it can lead to the exclusion from evidence of an expert’s opinion.
James J. Mangraviti, Jr., Esq., has trained thousands of expert witnesses through seminars, conferences, corporate training, training for professional societies, and training for governmental agencies including the FBI, IRS, SEC, NYPD, Secret Service, and Department of Defense. He is also frequently called by experts, their employers, and retaining counsel to train and prepare individual expert witnesses for upcoming testimony. Mr. Mangraviti assists expert witnesses one-on-one with report writing, mentoring, and practice development. He is a former litigator who currently serves as Principal of the expert witness training company SEAK, Inc. (www.testifyingtraining.com). Mr. Mangraviti received his BA degree in mathematics summa cum laude from Boston College and his JD degree cum laude from Boston College Law School. Mr. Mangraviti has designed dozens of expert witness training programs and has personally taught experts in a group setting over 250 times since 1997. He is the co-author of thirty books.
