A good testifying expert is clearly an invaluable commodity because he or she is responsible for articulating your scientific case to the jury. However, identifying that right expert for your case is not always an easy thing to do. In order to find the right expert, you often need a consulting expert.
In previous posts, we have discussed the value of consulting experts in complex scientific litigation such as pharmaceutical product liability, toxic tort, intellectual property disputes, cases (see, for example, here and here).
But what’s the real difference between a consulting expert and a testifying expert?
A good testifying expert is clearly an invaluable commodity because he or she is responsible for articulating your scientific case to the jury. However, identifying that right expert for your case is not always an easy thing to do. In order to find the right expert, you often need a consulting expert. A consulting expert is someone who knows the expert community and can help you figure out what type of expert to talk to. He can challenge your viewpoints as to what expert disciplines you need and who you should talk to.
Based on his continued interaction with the expert community, a consulting expert can provide unique insights as to specific attributes of an expert. For example, we recently worked on a toxic tort case involving allegations that exposure to a certain chemical caused a specific type of cancer. In her past, the opposing expert sat on an IARC working group and she would routinely trot out these credentials. Our client was very interested in finding an expert who also sat on an IARC working group and who could thereby counter her assertions with similar experience and expertise. Based on our professional interactions, we were able to find a well-credentialed epidemiologist who had vast experience with IARC working groups and who could serve in this important role.
While the ultimate selection of a testifying expert must be made by the trial lawyer, a consulting expert can provide you with critical scientific details that will help you make the best choice.
Monitoring the Science
Keeping up-to-date with the scientific information is an important part of any pharmaceutical or medical device case. Many lawyers rely upon their testifying experts to keep them current with the relevant scientific studies. However, these activities are often haphazard and inconsistent. After all, your testifying expert is a scientist, not a librarian.
The right consulting experts, on the other hand, specialize in providing clients with up-to-date information on the studies relevant to science-based cases. A consulting expert can develop a systematic program designed specifically for the science related to the issues in your litigation – i.e., the exposure of interest, related exposures, the disease endpoints or adverse events of interest, and other injuries that might be relevant.
Often, the key to a toxic tort or a pharmaceutical or medical device product liability case is taking the right approach. This approach might involve a detailed analysis of an issue, systematic compilation of relevant data, assistance with direct or cross examination approaches, or re-analysis of study data.
While it is true that your testifying expert can help you develop the appropriate strategies, the right consulting expert can often be much more informative. Odds are your consulting expert will not know more about the detailed aspects of the exposure of interest or of the disease endpoint – but he will be able to provide strategic guidance that can help ensure that you take the right approach.
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