In this episode…

In this episode of our podcast Discussions at the Round Table, host Michelle Loux connects with Dr. Douglas Kalman and Dr. Susan Hewlings to discuss their unique expertise and careers as expert witnesses. They detail the lessons they’ve learned working with legal teams and how to achieve success in the role. This includes the management of expectations, ensuring good communication and the importance of being concise with case details. Tune in to this episode for all this and much more!

Episode Transcript: 

Note: Transcript has been lightly edited for clarity. 

Host: Michelle Loux, Assistant Project Manager, Round Table Group 

Guests: Dr. Douglas Kalman, Senior Vice President of Natural Products and Dr. Susan Hewlings, Director of Scientific Affairs, Nutri Source/GRAS Associates

Announcer: This episode is brought to you by Round Table Group the Experts on Experts.® We have been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com.

Michelle Loux: I would like to welcome my guests today, Dr. Douglas Kalman, Senior Vice President of Natural Products, and Dr. Susan Hewlings, Director of Scientific Affairs, Nutri Source/ GRAS Associates. They are Co-Founders of Substantiation Sciences.

Tell me how you started as an expert witness in sports nutrition and food science.

Dr. Douglas Kalman: My first foray into being exposed was a world of medical-legal consulting or medical-legal work if you will, while I was involved in both oncology patient care and HIV research. I had done some expert-related work for one of the companies that had an HIV medicine coming to market. What was going on with their label at the time was to go through the Food and Drug Administration (FDA) to get on the market. That is different than expert witness work, but that was my opening to say, there is a whole other world here in medical-legal.  Then, as my nutrition career grew, I became exposed to working with many different law firms for a variety of projects when an expert would be needed.

Michelle Loux: What types of cases are you usually retained for?

Dr. Douglas Kalman: Amongst the different cases that both Dr. Hewlings and I have worked on, there have been cases where there have been lawsuits of a company versus a company and government regulatory agencies versus a company.

Dr. Susan Hewlings: We have been involved with individuals in a company where an individual tries to claim that a dietary supplement had some adverse medical effect.

Dr. Douglas Kalman: Class action [too].  I remember one of the cases that we were involved with overlapped with so many different areas of expertise, but not necessarily for us. It was unfortunate. A gentleman had sustained some type of injury during his first or second time in a gym. This gym, like many other gyms, gave their new members free personal training sessions to welcome them to their club and upsell their training sessions. Apparently, this gentleman got hurt in the gym and upon the advice of the trainer, took a product that then made his situation worse. Physical therapy, medical experts, and nutrition experts were needed. They needed foresight of the potential side effects. Could it do these types of things? That one was complex but also, from my vantage point, it was fun.

Michelle Loux: When you start as an expert, it is a little daunting. It is different and there is more to it. What do you think you found along the way that made you more successful as an expert witness?

Dr. Douglas Kalman: What I would like to do, if it is okay with you, is share that question with Sue because we often work as a team. We also have different experiences and perspectives.  I have more experience than Sue in court testimony, but we both have a plethora of experience writing expert reports that are used in cases. Another thing that I would say, just as an aside before I ask Sue to take over, is a great many of these cases seem to get settled before they ever go to trial. So, you end up doing a lot of work, and then it goes away. You never testify. There are depositions, but nothing in an actual court. Sue, do you mind sharing? What was your first experience like? You had a different background than I had. You came from academia and research into doing expert work.

Dr. Susan Hewlings: I knew about expert witnesses. I have a good friend who is a Ph.D. nurse practitioner, and she has done [expert witness work] her whole career, so I always knew it was there.  Doug is the one who first brought me into it because you have to realize you are an expert.  You will say, “Oh wow, I have been doing this long enough that I am qualified as an expert” Doug and I already knew that we worked well together. We had written a lot of stuff together and we have worked well together for years, since college.  I think it is knowing your strengths and capitalizing on them. When we get on Zoom calls, and we talk through it, Doug is good as far as being an expert witness on the flock, like being able to defend this on the fly. I am the person who does the reference and the report. Then, we mix our areas of expertise. We have a lot of crossovers . . . that helps. The biggest thing we learned is to stay in close contact with legal because oftentimes we are coming from two different backgrounds. Doug and I come from a science and clinical background. Sometimes we will try to interpret what they are asking us for in reports, and we are wrong.  We make sure to keep in close communication and ask questions from our legal sources. We do not want to do too much work and then have them say that is not what we wanted. We have had that. We have done this whole report, have done this total deep dive, spent hours on it and the lawyers said, “This could have been in a three-sentence statement.” Making sure you are clear on what you are being asked and making sure your deliverable matches your ask is important. On the other side of our careers, we have done a lot of substantiation of marketing claims and a lot of deep dives into science for that substantiation. Sometimes that is needed for the expert witness report but many times, it is not. It’s really  understanding the ask  . . . we have become more efficient at providing reports.

Dr. Douglas Kalman: One of the things that we have learned is something that comes from research. When you are working as a principal investigator or a co-investigator in research or contract research, one of the things that you look to do probably in real and regular life is managing expectations. In this way, when you are working with law firms on complex or even easy cases, you have to manage the expectations of what date the report is due. What highlights are you looking for? What are some of the strengths and weaknesses? Where can we introduce things, you may have not thought of? I am thinking of these as I am meeting the lawyer right on the other part. We like to manage those types of expectations and get a clear-cut calendar timeline of when everything needs to be pristine. That helps because once you have good communication it is easier to be successful in what you are doing. Whether it is successful for the client in the ultimate, is something different. We have worked both sides if you will. There are many types of cases that come up.

Dr. Susan Hewlings: I think that is the other thing. If you stick with the basic premise, where our input or response is driven by science. It is also sticking to the individual points that are being put forth by the lawyer. That is answering those points with science. If you do that, you cannot go wrong.

Michelle Loux: Have you been retained as an expert for government cases?

Dr. Douglas Kalman: I have been brought in as an expert on regulatory cases, but it has not been on the side of the United States government. I do not have anything against the United States government, because they are listening and we welcome them, but quite honestly, it has been for somebody, let’s say the Federal Trade Commission. When I say somebody, it could be a company. It is not an individual. Although it could be somebody that had an FDA issue.

One of the things that makes doing expert witness work different than expert work is that as an expert witness, you have to qualify yourself for the court. It is in a mandatory statement that you have to spell out what qualifies you as an expert. Then either of them could be challenged by the opposing counsel. Then the judge has to do a ruling, a doubling, I believe it is called. If you survive a Daubert challenge, then you certify you are confirmed. Now you have survived a legal challenge as an expert. Again, the attention is on the details. I am not a great writer, but there are writers that I like. Hemingway was a writer that I like and one of the things I was taught about him is he used the least words possible to describe whatever he wanted. He is concise. “The sea was rough, my friends” or whatever it was. I think that becomes important when you are in each section of a report. When you are detailing what qualifies you to be considered an expert in the area that the case is about, I will tell you I have worked on intellectual property cases, written patents, and know how the secret sauce is made [if you are McDonald’s] as well as civil litigation, class action suits, and others . .  the detail matters. My point is that you could spell out what makes you an expert. Then you have to make sure that you address the questions that the court is asking you to address.

Michelle Loux: Sue, have you been an expert witness as far as testimony or deposition before?

Dr. Susan Hewlings: I have not, no. I have done mostly the reports and the background research that is required. No, Doug is the face.

Michelle Loux: Part of being an expert witness is the presentation. What you provide to the opposing counsel, as with everything universal, there are different personalities. There are different approaches, and you almost have to be well versed. You need to navigate some tricky situations. Is there anything you do to prepare yourself before testimony or is there preparation work that your attorney provides you with before you face the opposing council?

Dr. Douglas Kalman: I do think there are probably standard practices for industries. I have testified in cases, written reports, and testified in cases since I would say the late 90s. One thing that has always been a common theme is if you are going to appear in a deposition or court case you have all the communication with the lawyers and you have everything that you have done, but either the night before or the morning they meet with you for dinner, coffee, breakfast, whatever, they go over the highlights. To prepare, I make sure that I have good communication with the lawyer because they always have a good feeling and know what the other counsel is going to primarily be asking. I make sure I am well-read on the topic. That translates to when you are testifying, whether it is a deposition or court. A tip I would share is to take your time with your words. Discuss what you would like to discuss, but do not overtalk.

Dr. Susan Hewlings: Both of us have a background in teaching, especially at the graduate level, and we have experience doing that. It helps a lot because you are in it. You are good on your feet, so to speak, right? You can respond to a question on the fly that could come not from what you have prepared for the lesson, especially when you are working with graduate students. I think that gives us a lot of experience and I agree with Doug that thinking, being concise, and taking your time to speak are important. The lawyers that we have worked with have given us that recommendation, and that coaching upfront. They talk about it and it varies depending on the case. First of all, often they want one person as the front, and I will do the background work. Other times they want both of us involved. I want to emphasize being concise, thinking before you speak, and taking your time.

Michelle Loux: Let’s move into contracts. When you have that initial consultation with the attorney, and they ask about your credentials and background . . . what do you think of this matter . . . etc., how do you prepare for those? What are some of your best tips to put your best foot forward? Do you hold back some information because you are thinking, “Are you looking for information to see if you have a case?” Or are you upfront and know that this is an initial interview meant to be a meet and greet? How do you both handle those and how does it then translate to the contract for special terms? This is [has become] a two-parter question [laughs].

Dr. Douglas Kalman: Yes, you would be good as a lawyer, by the way.

Dr. Susan Hewlings: We have many similarities. We are both Geminis and we are very straightforward. There is no holding anything back. Here is the other thing, if somebody wants to find out something, all they have to do is Google us. We are straight up. That is our area of expertise and what we have to offer. We work together. We have to and we lay that out at the first meeting. It goes back to good communication. We establish that right from the get-go and I think most lawyers appreciate it. They are busy and that is the way they want it. They do not want us holding anything back.

Dr. Douglas Kalman: I would add that when you are having this interview conversation with the lawyer, sometimes you will already know what the case is or what it is about. You could do some due diligence to see what was filed, what are they saying, and the issues from your perception.  Then you hear from council, what the issues are and you have an intelligent back and forth. You can illustrate that you have insight, you know what you are talking about, and then you can discuss the nuances of the issues. Most of the time what I find is that when you are having this conversation with the lawyer or lawyers and you show that you are familiar with the topic it becomes more of a formality than the rest of the process of getting hired and working on the case.

Dr. Susan Hewlings: We put that up at the first meeting. That is important.

Dr. Douglas Kalman: I will give one example. Two companies have been suing each other for the last couple of years. It happens I guess in every industry. This one is the beverage industry. Both sides have reached out to us multiple times.  “Can you be an expert for us?” Each time, we say “No,” and they ask, “Why?” I said, “Well, there is a perception of a potential conflict of interest because as an individual I was at the wedding of somebody that works for one of these parties. Therefore, there is a perception of conflict.” I would rather not get involved, especially when both sides are asking us. It is not like you are going to get into a bidding war to sign a baseball contract. That is different, but you need to be upfront because the lawyers and law firms you work with do not want to be caught by surprise by anything during the discovery phase or other aspects of the case.

Michelle Loux: Absolutely. Sometimes, when we get those initial calls asking, “We are looking for this expert witness to…” but are hesitant to provide us with the names of the parties.  That is something we must have for our conflict. To your point, you might have been associated with the other side.

What is good about podcasts is the stories we tell to add to the flavor of being an expert witness. Are there any stories that you have that come to mind that were learning lessons for you? Any examples of how you improved as an expert witness or an aha moment?

Dr. Douglas Kalman: I had a couple of moments and learning lessons especially during depositions as well as during working with lawyers and law firms. Both Sue and I, in writing reports, to make sure we are not over delivering or under delivering and that we are right on target, have to understand what they are looking to drive home.  Sometimes, because of our knowledge of regulatory and science, we open their eyes to things that they were unaware of as well. I remember having an aha moment during a case when I was on the stand. It was at the end of a long day and I do not know how it works. It was a federal case and the judge said, “I have some questions I would like to ask the witness.”  The judge asked me questions. The judge can do anything they want, but I did not know that. That was a learning lesson. The second part was in my mind. I was very happy but did not verbalize that. The judge asked me the only questions that mattered for the whole case. I was asked nonsense questions for seven or eight hours or six hours plus lunch. The judge had three questions and they were at the heart of the whole case. In my mind, I was saying, “Finally somebody actually asked the right question.” That was an aha moment, learning that judges can ask questions and that you could be on the stand for a long time without being asked the right questions by the plaintiff or defense. It happens.

Michelle Loux: How about you Sue?  Anything behind the scenes? You mentioned earlier that sometimes you would go into detail in an expert report with what you think is the right angle and then find out it only needs three sentences. Any aha or learning moments?

Dr. Susan Hewlings: Nothing I can think of. That was the big one for me. I think also, and we have mentioned this, I think realizing that there could potentially be lawyers who would have an issue with us working together. I did not think that was going to be an issue because it was like getting to experts for the price of one, but I think that was another realization. We have to do more dividing and conquering than I thought. I realized that only one of us was going to be able to do the deposition and I am sure that eventually, I will do some of that as well, depending on the topic. If there are topics that fit better for me. I think another thing is finding out that was not always going to be the case. It is not like I could just work in In the background and not have to disclose it. That was the only other thing I could think about.

Michelle Loux: Thank you both. I appreciate your time. Are there any closing comments from either of you about being an expert witness in general?

Dr. Douglas Kalman: One closing comment that I would have about being an expert witness is that it allows you to educate or re-educate yourself about the legal process and how it affects the rest of society in almost everything. Whether it is from regulatory or the nation’s laws and understanding how the court systems work. It gives great insight and I think that is a positive at an individual level.

Dr. Susan Hewlings: Exactly, and I think it’s an excellent source of revenue to generate for yourself at a certain point in your career. There’s nothing wrong with that. You’re providing a very important, critical service with your knowledge and expertise that you’ve spent years and years developing. It’s the ultimate side hustle for the expert person, and it’s a lot of work. Nobody should think that you’re just going to go in and someone is going to verbally ask you questions and [think] it’s easy. No, it’s a lot of work. We have to cross our t’s and dot our i’s. These lawyers hold you to task. It’s labor intensive . . . It’s not for everybody, but we find it very rewarding.

Dr. Douglas Kalman and Dr. Susan Hewlings, Co-Founders Substantiation Sciences

Dr. Douglas Kalman is Senior Vice President of Natural Products and Dr. Susan Hewlings is Director of Scientific Affairs at Nutri Source / GRAS Associates. They are Co-Founders of Substantiation Sciences, a consultant company in nutrition sciences and dietary supplements. Dr. Kalman and Dr. Hewlings have worked individually and as a team on a variety of interesting cases for both the plaintiff and defense.