The Supreme Court of the State of Oklahoma (Ellison v. Campbell, Case # 108468, March 11, 2014) has upheld a $408,000 verdict against an expert witness for breach of contract.  The expert was accused of and admitted at deposition to substandard performance in preparing expert materials in the underlying litigation.  The damages were calculated as the amount paid to the expert in addition to the amount expended on investigatory work by the client at the expert’s request.  The expert made several damning admissions at his deposition, including:

Mistakes in His Report

Q So is the report – is the report incorrect in that respect?

A That report – this report is incorrect in two places. One, in the cover page, and the other is in the section 1 – must be page 1.

Q All right.

A Secondly, I noticed, in rereading my rebuttal, that a typo occurs on page 3, one, two, three, fourth line, middle of the line it says 4,000 cubic feet. That 4 should have been an 8. That’s a typo.

Q (By Mr. Cottingham) That fly ash – and I know the load tickets that your referring to, that – correcting the report form 4,000 to 8,000 cubic feet – what percent of that is the total cubic feet of material in the FPC site?

A Don’t know. . . .

Failure to Follow an Accepted Protocol

Q You understand that there’s a specific protocol in utilization of the Hach kit, do you not?

. . . THE WITNESS: Yes, there’s always instructions as to how to use them, yes. Kits.

Q (By Mr. Cottingham) In regard to how the Hach kit was used at the FPC site, you don’t know if that protocol was followed or not, do you?

A No. . . .”

In addition the expert witness was accused of quitting and abandoning his client.

The Court upheld the verdict against the expert witness and stated:

“This opinion should not be read for the proposition that a losing party may recover monies paid to an expert witness for the formulation and presentation of an opinion in the context of litigation merely because the party requesting such opinion did not prevail or recover to the extent anticipated. Rather, here, we are faced with a unique set of circumstances. An individual held himself out as an expert in hydrogeology capable of preparing a scientifically supportable report in that field. He contracted with the Ellisons to prepare such a document and be available to support it with his testimony. Instead, he produced a report which was admittedly error-riddled and based upon methodologies not meeting either state or federal regulations. Simply, Campbell did not perform the services for which the Ellisons contracted and paid.”

The above case clearly demonstrates the importance of experts doing a good job in their cases and utilizing proper quality control protocols.  Although suits against expert witnesses for breach of contract are rare, expert witnessing is generally driven by word of mouth.  Expert witnesses who are sloppy and do not form defensible opinions will likely generate career-ending word of mouth.