By Kelly Wilbur, Esq.

Actuaries often serve as expert witnesses.  Below is an example of a cross-examination of an actuarial expert witness. This case involved an actuary testifying as to economic damages suffered by a plaintiff.  The expert witness in actuarial science is challenged on a number of areas including qualifications, being a hired gun, bias, methodology, assumptions and failure to consider potentially relevant information.


Sample Cross-Examination of Actuary Expert Witness on Qualifications

Q. Mr. H, what do you do besides prepare these type of reports for plaintiffs’ law firms?

A. I do research. I prepare these reports and I do calculations and I also give expert testimony.

Q. The research you do, is that related to the preparation of the reports?

A. Yes, but there are a number of types of reports that we prepare, so it’s not always earnings data, it’s a number of other things too.

Q. But your work is doing the research concerning the claims of economic loss in lawsuits; correct?

A. And things related to that, yes.


Example Actuary Expert Witness Cross-Examination – Attempting to Paint the Expert as a Hired Gun

Q. For example, as an actuarial economist, you don’t do any consulting for insurance companies about what premiums should be for life insurance, that type of thing?

A. I have not personally done that, but we do that on occasion at the office.

Q. That’s within the science of your occupation, but you don’t do that?

A. That’s correct.

Q. Your work is exclusively related to litigation?

A. Yes, that’s correct.


Sample Actuary Expert Witness Cross-Examination – Challenging the foundation of the opinion – the actuary did not review the medical records in the case

Q. Mr. H, I take it that all the records that you reviewed are the ones that you brought with you Today?

A. That’s correct.

Q. So you haven’t reviewed any medical records, have you?

A. No.

Q. You reviewed Mr. F’s deposition, I see. Did you note in his deposition that he is a former smoker who quit in 1984?

A. I may have read that. I don’t believe I made a note of it.

Q. Let’s start backwards, if we could. The lost household services that you talk about, are you aware that Mr. F returned to gardening in 1985 and continued to garden until he was in an accident of May 1, 1986?

A. I have no specific information in that regard.

Q. If he said that in his deposition, you don’t recall it?

A. I don’t recall.


Example Cross-Examination of Actuary Expert Witness – Challenge on Life Tables Used Not Specific to the Person in Question

Q. Doctor, in doing your economic work in this case, I’d like to find out the things that you reviewed that have to do with the economics. As I understand it, you used the life tables of the U.S. government; correct?

A. That’s correct.

Q. Now, the life tables you use apply to everybody in the united states; correct?

A. That’s correct.

Q. And all they tell you is that for a certain male of a certain age, if you take all the males of that age, of that race in the united states and average their lives, life expectancy together, it tells you that that person will live “x” more years; isn’t that correct?

A. On the average, that’s correct.

Q. For example, if I turn to someone, a forty year old white male, you would see that in 1991 the averages show a forty year old white male, whether he is in excellent health and runs the Boston marathon or is dying of cancer, you get the same average; isn’t that correct?

A. Yes. The tables indicate the average for all persons.

Q. So I’m going to put down here “general”, and put down the things that are general to all people, and I’m going to list the things that are specific to Mr. F that you reviewed. So from the life tables you determined Mr. F’s future work expectancy, that he could work to age sixty-five?

A. From the life tables we determine what the average life expectancy would be for a person of his age.

Q. And you work backwards for the fact that he would work to age sixty-five because the life table told you he would live beyond age sixty-five; correct?

A. That’s one consideration. One does not follow directly from the other.

Q. What was the other consideration? There is a work life expectancy table also?

A. Correct.

Q. The work life expectancy table, that was general too? The people averaged in that table are the people that are in excellent health, of his age and the people of his age who could have a fatal illness; isn’t that correct?

A. That’s correct.

Q. And the people that could be murdered tomorrow?

A. That’s correct.

Q. So I’m going to call that “work life table”. Now, doctor, isn’t it correct that you didn’t look at any medical records or ask any questions about health history to determine that Mr. F would have been able to work to age sixty-five?

A. We had a brief history of his medical history just prior to this particular incident and surrounding it. For instance, I did know that he had a bruised hip and cervical rib fractures. He had cardiac surgery. He had inconsequential prior back strain and other similar items like that.

Q. Doctor, did he have ulcers at any time?

A. I’m not aware of that. I’m not aware.

Q. Did he have half of his stomach removed?

A. I don’t believe I know that.

Q. Do you know if he’s had cancer?

A. I don’t believe I know that.


Cross-Examination of Actuary Expert Witness – Hypocrisy attack, this is not how you would do things in a real world situation working for an insurance company.

Q. If an insurance company came to consult with you and said Mr. F had come to them to purchase disability insurance, that there had been no lawsuit here, there was no claim of disability relating to his hospitalization, but they came to you and they said: you know, we want to know what rating to put on his disability premium to buy disability insurance or to buy life insurance. Wouldn’t you in the practice of an actuarial economics profession get that material or wouldn’t you look at tables that specifically applied to people and their health histories?

A. We would want to look at all the available information we could obtain. It would include an in depth physical and there may be factors to indicate that there may be reason to assume that the life expectancy might be better than the average as well as the other way around. But you need to do an in depth type of analysis, that’s correct.

Q. Did you ask for any of those materials in this case?

A. No, it’s not normal for us to do that.

Q. So specific to Mr. F — I’m going to run out of room, so I’ll just put down “Mr. F” there is medical records, physical exam. And I’m a terrible writer. There’s smoking history, that would be a factor, wouldn’t it?

A. Yes.

Q. Present health status — you’d know that from the physical exam and the medical records. In addition, if you wanted to go the middle step, you could just be told what his health history was and go to tables that would be available to actuarial economists that are more specific than the tables you used; isn’t that correct?

A. There are many tables that are utilized.


Actuary Expert Witness Cross-Examination – Failure to use specific life tables for individual with serious health issues

Q. You could find a table which would relate to someone who had surgery and had half his stomach removed, someone who had prior stomach surgery, couldn’t you?

A. I’m not specifically sure about those particular items, but there are tables that indicate expectancy given various particular indicating factors. But I’m not sure about those two.

Q. There are also tables that relate to smokers and nonsmokers?

A. Yes.

Q. And people who quit smoking and how many years since they quit smoking; is that correct?

A. I believe so.

Q. And there are tables which relate to people who have had cancer and had surgery for cancer; isn’t that true?

A. Yes.

Q. And those tables do not indicate anything close to the life expectancy of the averages of all the people in the united states, do they?

A. The life expectancy in each of those tables would vary. I would have to look at each of them to see how they vary.

Q. As a general matter, I know you didn’t look at those tables, I’m going to call them actuarial tables, you would agree with me that the actuarial tables that would apply to a white male Mr. F’s age who had had half of his stomach removed in surgery in 1977, who had had a massive heart attack in 1984, who had had cancer diagnosed in 1989, stomach cancer and surgery for stomach cancer in 1989, you would agree those tables would have a much shorter work life expectancy than the one you have used, would you not?

A. I would expect if we only look at those factors and don’t look at other possibilities for other indicators for the specific person, that just on those factors alone it would be less, but I would not necessarily say much less. I would have to look.

Q. If an insurance company called you up for a rating for a disability policy or called you up for a rating for a life insurance policy, those are the tables you’d use, aren’t they?

A. We might. We would also look at all the available tables that we have and one of those would be the life tables.

Q. Do you know any insurance company that would accept a rating based on your looking only at the life tables and the work life table being used?

A. As far as I know there are insurance companies that would have values that are comparative to the life tables.

Q. But they would also use the actuarial tables?

A. They would use whatever information they could glean, yes.

Q. Incidentally, what part of your education was it that taught you to get this United States department of labor work life table?

A. I’m sorry, I don’t understand the question.

Q. What part of your — what in your expertise first required you to figure out the work life expectancy from the U.S. tables?

A. Well, we use the U.S. life tables published by the department of health because those are table also that are generally looked to by a large number of professions, executives, pension planners and life insurance people to determine what the average life expectancy would be. They may use other factors including their own data that they have from their own policy holders, but this is one table that is widely used.

Q. My question was poor. I apologize. What I wanted to know, sir, in order to reach the figure from the life table, didn’t you just go to the table, turn the page, find Mr. F’s age and then look across the sheet?

A. That is where the figure is.

Q. Any of us could do that; correct?

A. Sure.

Q. You don’t have to be an actuarial economist to figure that out?

A. There are various categories. You would need to know which category he would fall in.

Q. But you can read that from the table.

A. Sure.

Q. So it wouldn’t take an actuarial economist to come up with the conclusion that you reached that Mr. F was going to work until age sixty-five?

A. I would say other people could come to that conclusion easily.


Cross-Examination of Actuary Expert Witness – Household Services – Expert never looked at financial records

Q. Now, in addition to, and this is considering “the general” and “Mr. F”, I’m not sure what category, but in addition to the records, you could have looked at actual financial records of the F’s to see what money they had spent on the type of things that come under household services; isn’t that correct? You have concluded, sir — the question is bad, I’ll withdraw it. You’ve concluded that since 1984 there has been a loss of household services that would have been provided by Mr. F?

A. That was the indication, yes.

Q. Well, how much money did they spend in January 1985 for that loss of household services?

A. I have no idea what they might have spent.

Q. But you could have asked for that record, couldn’t you?

A. I could have.

Q. That’s the type of thing that an accountant would look at or an economist to determine how much is actually being spent to replace those services, isn’t it?

A. Maybe and maybe not, because the real focus of the question is the value of all of the services that are lost. He may or may not be replacing all those services; nevertheless, the loss exists and we need to put a value on that.

Q. But you would assume that there are personal financial records that would at least tell you whether or not any of those services have been replaced by the Fs?

A. Maybe or maybe not. They may not have paid people to replace the services.

Q. But then you would have been able to say: I’ve looked at the records and they haven’t paid anything. You would at least know from the records whether they had or hadn’t?

A. It would have no bearing on my calculation.

Q. Because your calculation didn’t take in anything specific about the Fs, you just looked at the general information; correct?

A. Either way my calculation would still be the same if I had information regarding what he paid to replace it or if I didn’t, the calculation would still be the same.

Q. If he spent more to replace it your calculation would be the same?

A. That might indicate it should be a little higher, but my calculation would still on the conservative side be the same.

Q. If the Fs paid more, you wouldn’t come in and tell this jury that Mr. F had to pay more to replace those household services?

A. I would do that, but the purpose of the calculation is to come to a reasonable average to use to value these services.

Q. But you didn’t even check to see it was so. You didn’t look at any financial records of the Fs, did you?

A. Not specifically, no.


Actuary expert witness cross-examination – expert lacked hard information on cost of fringe benefits

Q. Let’s go up to fringe benefits. What did you look at that told you what D.A.R.T. paid for Mr. F’s fringe benefits before he left that job?

A. I had records from the employer that indicated an entire list of the types of fringe benefits he was provided with and I think I listed some of those earlier.

Q. What did they pay for it?

A. I don’t believe I had information as to exactly the amount they paid for that.

Q. So what you did is you took an average of what people pay for fringe benefits?

A. I took an average of what employers would normally pay for these type of fringe benefits.

Q. Average for fringe benefits.

A. And, again, we’ve been conservative. My calculation came up a little higher than twenty percent but I used twenty percent.

Q. But you didn’t ask d.a.r.t what they paid, did you?

A. No.

Q. You didn’t say to Mr. F’s lawyers, could you find out from the union what the cost to D.A.R.T. is, did you?

A. No.

Q. So you could have found out the specific amount D.A.R.T. paid but didn’t; correct?

A. I could have. They may or may not have had that information. Some employers keep records of that, others don’t.

Q. You are suggesting that the state transit authority would not have a record of what it pays for its fringe benefits of its employees?

A. They may not have an indication or a reasonable figure for all of the fringe benefits that they pay.

Q. Wouldn’t they have the premium statements every year?

A. They may have that on a group basis, though.

Q. But you can divide the group basis by the numbers of the group, couldn’t you, sir?

A. Yes.

Q. And that’s the kind of a thing an accountant or economist would do that someone like me wouldn’t be able to do, correct?

A. You might be able to do that.

Q. Or I might not, and that’s why I might go to an accountant; correct?

A. You could.

Q. But what you did, I could go to a table and I could easily look at the same table you looked at, couldn’t I?

A. That’s correct.


Actuary expert witness cross-examination – lost wages, actuary assumed plaintiff would work 52 weeks per year

Q. Now, let’s take the alleged past lost earnings here. You have calculated a past lost earnings from what date?

A. From September of 1984.

Q. And what did you do, multiply the hourly wages, the hourly pay rate of Mr. F’s job title at the current year, 1984, 1985, 1986, times forty-five hours a week?

A. No, times forty hours per week plus the allowance that would be made for the overtime rate on the extra five hours per week.

Q. Times fifty-two weeks a year?

A. That’s correct.

Q. What year did Mr. F work fifty-two weeks a year? Of all the records you reviewed, what year?

A. The records I had indicated that the earning levels were with sick days so I don’t have that information.

Q. He never worked fifty-two weeks, did he?

A. I really don’t know.

Q. Well, you have the records in front of you, don’t you? You have the state transit authority records of his presence at work and absence, don’t you? If you don’t, I’ll be glad to give them to you, sir.

A. I do have attendance records, yes. Our calculation, however, deals with a loss of earning capacity and the capacity would be calculated in this way.

Q. Well, if a person historically over ten years has the earning capacity to only work nine out of twelve months, isn’t that his track record?

A. That might be one way of doing a calculation, but you would need to define capacity in that instance.

Q. I didn’t ask you about calculation. I asked you wouldn’t that be his track record?

A. That would be his history.

Q. If you were to hire someone who would work nine months a year for ten years, would you expect that person to work twelve months a year for the next ten years?

A. If we had a history that indicated regularly that he only worked that much, no, I would not expect that on the average. But again, that may or may not be the definition of capacity in that instance.

Q. In rating a disability policy for someone, you would certainly consider whether they worked twelve months of the year or only nine months of the year for the ten years preceding writing that policy, wouldn’t you?

A. Yes.

Q. You didn’t consider that in this case, did you?

A. No.

Q. As a matter of fact, for that issue we could have looked at his attendance records but didn’t; correct?

A. I did review the attendance records. It did not change my calculation.

Q. But you did not make any allocation for the fact that historically he had worked significantly less than fifty-two weeks.

A. It did not make any change in my calculation. In deed the earnings level, for instance, in 1981 would have indicated a high level of earnings for the wage rate in effect at that time.

Q. Incidentally, wouldn’t you agree that the highest earnings that Mr. F experienced at the transit authority was for the twelve months from May of 1985 when he returned to work until May of 1986?

A. I would have to look at that breakdown. I don’t have it in my notes here broken down that way. The highest level of earnings I do have is for the calendar year 1986, which is just slightly higher than his calendar year 1981 earnings.

Q. But I think his deposition will establish, and if you need additional records I’ll substantiate it, but I think the deposition will establish that he worked until May 1st, 1986, was involved in an accident. He was out of work for a month and then he went back to work and stopped work in November; correct?

A. I have that he returned April of ’85 to May of 1986 and then he returned from June of 1986 to November of ’86, from the records I reviewed.

Q. So the highest year of wages that you have is 1986; correct?

A. That’s correct.

Q. And even that year he did not work at least two months, may to June and November to the end of the year; correct?

A. That would be correct, yes.

Q. Yet, what year did you start at? What amount did you use for 1989, 1990 and 1991?

A. The annual level of earnings?

Q. Yes.

A. For 1989 there were two different levels. In the beginning of the year —

Q. Did you use a hundred percent, fifty-two weeks working?

A. Plus five hours of working overtime, it would have been thirty-two thousand one eighty-four per year and it would have been a slightly higher figure for the remainder of the year.

Q. Let’s go back to 1981 the first page of your report. Did you calculate how many weeks he would have worked to earn that amount of money?

A. In 1981?

Q. Right.

A. No. But I did know that he had eighteen days sick that year.

Q. And he’s paid for the sick days; correct?

A. It’s part of his fringe benefit.

Q. So would you agree with me that if you assume an hourly rate of eleven dollars —

A. Eleven dollars would be for 1984.

Q. Right.

A. Eleven fifty-one.

Q. But we know that it was eleven fifty-one in 1984 and between what the increases were until the present time; correct?

A. Yes.

Q. Taking those increases, wouldn’t you say that he was probably making, if you work backwards in those increases, wouldn’t you say he was probably making less than or eleven dollars an hour in 1981?

A. Yes, it would be probably higher than ten fifty, maybe less than eleven.

Q. If you take the twenty-three thousand two hundred and thirteen dollars you have there — can you put that into your calculator, sir, twenty-three two thirteen from page one?

A. Yes.

Q. And you take eleven dollars; divide that by eleven, please?

A. Yes.

Q. And then divide it by forty-five, please. How many weeks would he have worked that year?

A. What does the forty-five represent?

Q. Forty-five hours.

A. That would be approximately forty-seven weeks on that basis.

Q. And that’s assuming that he got paid the same amount in overtime. Actually, he would have gotten time and-a-half in overtime, so he would have worked less than forty-seven weeks; isn’t that correct?

A. That assumes straight pay, that’s correct.

Q. And that assumes he got paid for all sick days, doesn’t it?

A. I believe so.

Q. Now, that’s his best year of working, isn’t that correct, in terms of attendance that you know of, highest pay?

A. That I know of, yes.

Q. Would you accept that if you use the rate of eleven dollars and twenty cents in 1982, that if you do the same math that we just did, he would come out with thirty-six weeks of working?

A. About thirty-seven on that basis.

Q. And 1983 is less weeks, isn’t it? I don’t think you even need to do the math.

A. The annual earnings are less, yes.

Q. And 1984 he had been not working from September after his heart attack through the end of the year and he earned more; correct? And we know he only worked nine months in 1984 because he had his heart attack September 11?

A. Right.

Q. So for the three years before he went out of work, he worked only three quarters of the year; isn’t that correct?

A. It varied.

Q. And that’s including sick time. So if you took away the sick time, he worked less than three quarters of the year in each of those years; isn’t that correct?

A. That would be the case on that basis.

Q. Isn’t it true, sir, that the federal government also publishes tables that tell you the average amount of time that a person will be out of the work force for any reason at all over their lifetime?

A. Yes, that’s part of the work life table.

Q. But you did not make any compensation that those tables, that the same publication from the government says that the same person, Mr. F, the same average person at his age, that same publication also says that same person will be out of the work force for thirty to forty percent of the time from age fifty-three to age sixty-five?

A. I did not make any adjustment in my calculation for that. Again, we are dealing with earning capacity and therefore I would not.

Q. So there is a general item, the same U.S. government tables which would reduce the figure for past lost earnings or future lost earnings you ignored; correct?

A. I did not use them. Again, we are dealing with earning capacity and on that basis I would not have used them.

Q. Well, do you know if the table gives a percentage that is close to or greater than or lower than the amount of time Mr. F worked for the ten years before he stopped working?

A. It would be greater. It’s not that much less than a full work schedule.

Q. So we could look at Mr. F’s attendance records and we could look at the government tables and they would tell us what his earning capacity had been for the ten years before you started your calculations, and we didn’t use those, and we used the hundred percent earning capacity that he would work fifty-two weeks a year?

A. Plus five hours of overtime per week. Again, the first part of your question, I would ask you what is your definition of earning capacity in relating to those tables and the use of them, because I have not used that dealing with capacity on a full time work schedule plus five hours of overtime.

Q. If you were doing the general type of actuarial accounting or actuarial economic analysis, that would be used for every other arena but the courtroom, you would use those tables, wouldn’t you?

A. I would certainly look at them.

Q. And, of course, you used the same assumption of one hundred percent working from this day up to age sixty-five; isn’t that correct?

A. That’s correct.

Q. You ignored or did not use the same tables or attendance records to arrive at a figure that would be a reasonable projection for Mr. F’s attendance record for work from ’84 through age sixty-five?

A. Again, I would not do that because of the definition of earning capacity.

Q. You wouldn’t do it when you come into the courtroom, but you would do it for every type of actuarial economic analysis for any other client; isn’t that correct?

A. I would look at those figures. It would depend on the purpose of the calculation.

Q. Now, back on that issue. In order to calculate the past lost wages, all you took was the hourly rate at the time in question times forty hours and then you added to that five hours at time and-a-half; correct?

A. That’s correct.

Q. Anyone could do that with a calculator, would you agree?

A. They would have to know the input information, but, yes.

Q. Well, you would put forty times, for example, for the year 1984 — well, I’m sorry, for the year 1985 you 12.1431 dollars per hour of Mr. F’s wages, that’s what his wage rate was at that time. So anyone here could take a calculator and do forty times 12.1431; isn’t that correct?

A. That would be the way to do it.

Q. And then for the overtime all you would do is take 12.1431 times 1.5 to get time and-a-half and multiply it by five times fifty-two workweeks; isn’t that correct?

A. That’s correct, uh-huh.

Q. I wouldn’t need to go to actuarial school to learn how to do that, would i?

A. Probably not.

Q. Now, for the future wages, you just started out at the wage rate for January 1, 1991, multiplied it out and then every year thereafter added two and-a-half percent, did you not, and add all those years up?

A. That would be one way of doing it. That’s not the way I do the calculation.

Q. Because you have a form calculator that is programmed to do that?

A. No. The formula that I use is in my head.

Q. But anybody could take a calculator and do the yearly figure and then add up those yearly figures; isn’t that correct?

A. Yes. It might take some time.

Q. I wouldn’t need to go to actuarial school to do that, would i?

A. To know the formula that I use probably you would.

Q. Where your expertise as an actuarial economist comes in is in analyzing the actuarial charts and figuring out which ones apply based on a person’s health history, a person’s physical examination, looking at the financial data available about a person, what their earnings were, and all of that requires the kind of skills you learn when you become an actuarial economist.

A. That plus others.

Q. Finally, Mr. H, are you aware that Mr. F has alleged in two separate proceedings that he is disabled because of the automobile accident or motor vehicle accident of May 1st, 1986?

A. I am not aware of any direct causal relationship between any incident and what his current situation is. That’s not something that I would consider or deal with.

Q. I take it you didn’t review his deposition in the case in which he alleges that he is disabled from the May 1st, 1986 accident where he states he can’t work because of that accident, did you?

A. I’ve reviewed what I’ve indicated to you, and if that’s something different, which I’m not sure it is, then I have not.

Q. Well, since you are not sure if it’s different or not, why don’t I just hand it to you and ask you if you’ve seen this transcript.

A. No.

Q. Would you not take into consideration the factors I just listed in doing any actuarial analysis for anyone outside of the courtroom?

A. It would depend on the nature of the problem and the result that is expected in terms of what the result will be used for. In terms of what I would look at, there might be a number of different things.

Q. They want your advice to determine whether the person would be working, would work a hundred percent of the time over the next ten years or they want your advice to determine what rating they should quote for a disability policy or a life insurance policy. If that was the purpose, would you take into consideration those factors or ignore them?

A. If I had information in that regard I would take it into consideration as well as the other standard tables that we use.

Q. And you could also look at the tables which are tailored to the health status of that person, wouldn’t you?

A. If I had them available to me.

Q. And those are the tables that every insurance company in the country looks at, aren’t they?

A. The tables that are used by insurance companies are so numerous it would be hard to describe.

Q. They don’t just look at the U.S. life tables solely, do they?

A. No.

Q. Mr. H, you were kind enough to ask me to look through your file before you took the stand this afternoon, and in the file I found a couple of letters from miss sheller addressed to you. I think one was dated July the 24th of ’91 and I believe the second one was July 24th of ’91; is that correct?

A. Correct.


Sample Cross-Examination of Actuary Expert Witness – Bias, Retaining Counsel addresses expert by first name in correspondence.

Q. And I noted that in the July 24th letter at least she addressed you as “dear David”?

A. She was addressing Mr. B, my boss.

Q. To your knowledge does miss s. know your boss?

A. I would think she does, yes.


About the Author

Kelly J. Wilbur, Esq., is a Trainer and Consultant for SEAK, Inc – The Expert Witness Training Company. She was an insurance defense and commercial litigator for five years prior to joining SEAK. Kelly received her J.D., cum laude, from the University of Massachusetts School of Law in 2015 and graduated from St. Mary’s College of Maryland with a B.A. in Political Science. While at St. Mary’s, Kelly was a member of the nationally ranked varsity sailing team and was a two-time All American. Kelly has experience preparing experts for deposition and trial testimony. Phone:  617-791-6802 Email: