7 Things to Look for in a
Chemical Analysis Expert
Witness
Important Criteria in Selecting Your Next Expert
Shri Thanedar, Ph.D., CEO and Chief Scientist
Ross Faith, J.D., Litigation Support Specialist
CONTENTS
Introduction ............................................................................................................................................................................... 2
#1: Relevant Training ........................................................................................................................................................... 2
#2: Subject Matter Expertise ............................................................................................................................................. 2
Case Study.............................................................................................................................................................................. 3
#3: Reliable Methods ............................................................................................................................................................ 3
Case Study.............................................................................................................................................................................. 4
#4: Courtroom Presence ..................................................................................................................................................... 4
Case Study.............................................................................................................................................................................. 4
#5: Independence................................................................................................................................................................... 4
#6: Unimpeachable Credibility ......................................................................................................................................... 5
#7: Availability ........................................................................................................................................................................ 5
Conclusion .................................................................................................................................................................................. 5
INTRODUCTION
Choosing an expert witness in a case involving issues of chemical testing and analyses can be
confusing to an attorney who does not have a background in chemistry. Many of the considerations
for choosing a chemistry expert are similar to choosing an expert generally; however, it is
particularly important to select an expert who has the right type of training and subject matter
expertise within a relevant sub-discipline of chemistry. This white paper explores these issues and
provides recommendations for lawyers who are looking to identify an expert witness in this
complicated area of science.
#1: RELEVANT TRAINING
An expert’s education and training must be top-notch to withstand scrutiny from the other side and
build trust with judges and juries. In the field of chemical analysis, this means that the expert
should have strong academic credentials, preferably a Ph.D. in a relevant subfield of chemistry, and
years of experience using the applicable instrumentation. Oftentimes, the most qualified chemists
will spend additional years doing post-doctoral work or working in industry to hone their skill at
analytical chemistry.
#2: SUBJECT MATTER EXPERTISE
As one practitioner notes, “[n]o matter how impressive the expert’s qualifications, they must closely
match the subject matter of the testimony.”1 Chemistry has many sub-disciplines, including
analytical chemistry, biochemistry, inorganic chemistry, organic chemistry, and materials
chemistry, among others. When a case calls for a chemistry expert, lawyers should first consult
experts with a broad-based problem-solving approach to chemical analysis problems. These
experts can then identify the appropriate individual with a background relevant to the proposed
testimony.
CASE STUDY
In a products liability case that our Chief Scientist handled during his career, plastic pipes were
breaking inside of a tank, causing leakage and damage to the interior of people’s homes. The
attorney on the case found a number of prospective chemical experts for litigation support – all of
whom had Ph.D.’s in their respective fields. One expert with a mechanical engineering background
specialized in the structure of materials. Another Ph.D. chemist had an analytical chemistry degree
and experience in the study of small molecules. The third Ph.D. was an organic chemist with
expertise in chemical structure and the synthesis of materials.
The attorney decided to use a polymer chemistry expert who was knowledgeable about the
composition of polymers because the case hinged on the role of additives in protecting polymers.
Because polymers are unstable and can degrade quickly without certain additives, the expert
needed to know about the effect that the lack of certain additives had on polymers. In this case, the
expert analyzed the polymers for identification and quantitation of polymer additives.
This case illustrates that not all engineers are alike in their background. Their subspecialties need
to be matched carefully with the problem at hand for effective problem solving and success of the
expert in presenting his case with scientific credibility.
#3: RELIABLE METHODS
Rule 702 of the Federal Rules of Evidence allows a witness “qualified as an expert by knowledge,
skill, training, experience, or education” to testify if, among other requirements, “the testimony is
the product of reliable principles and methods.” In Daubert v. Merrell Dow Pharmaceuticals, the
Supreme Court held that “the requirement that an expert’s testimony pertain to ‘scientific
knowledge’ establishes a standard of evidentiary reliability.”2 If an expert lacks sufficient scientific
knowledge in the specific area of chemistry at issue in the trial, a motion to strike his or her
testimony under Daubert is more likely to be successful.
In order to analyze chemistry issues in litigation, a chemistry expert must perform experimental
work. Such work is often is conducted in a laboratory. While some experts have access to labs of
their own, many experts outsource such work to other commercial labs. Integrity of the data is
essential in establishing the credibility of the expert's report. For example, can the expert testify
that an instrument he or she uses is calibrated regularly? Furthermore the expert must have a valid
Cecil C. Kuhne III, A Litigator’s Guide to Expert Witnesses, American Bar Association GP/Solo, 2006, p. 68.
See also Richard Fried, Jr., Feature: Choosing and Using an Expert Witness, 12 Hawaii B.J. 4, 2008 (“First and
foremost, it is essential that the expert’s testimony be firmly within his or her area of expertise.”).
2 509 U.S. 579, 590 (1993).
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method for collecting the data. After data collection, the expert must interpret the chemical data.
The question then is whether the interpretation is based on a scientific method.
CASE STUDY
In one case involving the corrosion of metallic components in an automobile, the issue was who
would be liable for the product failure. Did the problem arise with the vendor who supplied the
initial parts, the vendor who provided the polymer coatings, or the automaker who assembled the
parts into the final product? The right expert was able to perform the necessary testing in a lab to
which he had full access and where he directly supervised the technicians. The expert was able to
choose the appropriate methods from the directory ASTM (American Society of Testing Materials).
He used the correct, peer-reviewed methods and was able to draw conclusions that were not
vulnerable to attack under Daubert.
#4: COURTROOM PRESENCE
“Probably the greatest intangible factor in selecting an expert is how the individual will appear to a
jury.”3 There are many highly qualified chemists who have sterling credentials and academic
reputations, with many publications in their field. However, not all of these individuals can
communicate complicated ideas concisely and simply to a jury of laypeople. Furthermore, as one
practitioner notes, “cross-examination at trial is very different from scientific peer review, and
issues that may not affect a fellow scientist’s appraisal of the expert’s work may significantly affect
a jury’s perception of the expert’s credibility as a witness.”4
CASE STUDY
In a jury trial involving product failure, each side offered experts to testify about issues in the case.
One side hired a professor who was renowned his field, had 25 years of experience, conducted
pioneering research, and authored two-dozen research papers. On the other side of the case was a
Ph.D. scientist who owned and operated a small laboratory. The professor presented matter using
very complicated and hard to understand scientific terms. He did not look at the jury, instead
looking largely at his notes while he was talking. Furthermore, he did not speak clearly enough, nor
did his voice project.
The relatively younger Ph.D. Chemist explained scientific matters in layperson’s terms and used
everyday examples for the jury to understand the cause of the failure. He maintained eye contact,
spoke clearly, and was able to successfully convince the jury of his point of view.
#5: INDEPENDENCE
Juries give greater weight to the testimony of chemistry expert witnesses if they perceive the
expert’s judgment to be independent of his or her relationship with the party or the attorney in the
case.5 This is why seasoned practitioners almost always recommend using outside, rather than inhouse, experts.6 Juries are often skeptical of paid experts to begin with – the problem is made worse
Kuhne, p. 69.
Fried, 12 Hawaii B.J. 4.
5 See Kuhne, p. 68.
6 Id.
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by experts who are employed by the very people for whom they testify. In the area of analytical
chemistry, one option is to select experts who work with independent analytical chemistry
laboratories. These experts generally do not spend most of their time testifying in cases, as the bulk
of their work is working for manufacturers and other companies who require failure analysis and
deformulation of products.
#6: UNIMPEACHABLE CREDIBILITY
An expert’s testimony is only valuable if the jury or judge believes the expert to be an honest
person. If the expert can be attacked for bias, or for a history of lying or professional misconduct,
attorneys should reconsider hiring the expert, no matter how qualified he or she may seem. During
the selection process, look for experts who are frank and willing to disclose all information
requested.7
#7: AVAILABILITY
Potential chemical analysis expert witnesses should be available for potentially long and distant
trials. According to one report, “[t]he typical patent case takes two years to resolve.”8 Often, these
cases may also require the expert to travel across the country for depositions, court appearances,
and other meetings. As a result, even the most qualified expert may be useless if he or she cannot
commit the time and travel necessary to work on a case. Attorneys should look for experts who can
sign an agreement to make themselves available for the needs of the trial.
CONCLUSION
Finding an expert witness in a case involving chemical analysis requires a confluence of factors,
including: 1) relevant training, 2) subject matter expertise, 3) reliable methods, 4) courtroom
presence, 5) independence, 6) unimpeachable credibility, and 7) availability. Where a case involves
issues of chemical analysis and testing, one approach is to contact an analytical testing laboratory.
Avomeen Analytical Services has an extensive network of relationships with faculty members at the
University of Michigan and Wayne State University, along with a set of Ph.D. expert witnesses on
staff. We can match the needs of the case with a relevant and qualified expert.
If you require litigation support or expert witness services, please contact Avomeen Analytical
Services at (800) 930-5450 or visit our website at www.avomeen.com/litigation-support.
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See Kuhne, p. 70.
Jim Landers, “Trouble Impending in Patent Process,” The Dallas Morning News, May 1, 2007, p. 1D.