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Seeking Exclusion of Expert Witness Testimony and Evidence in Civil Litigation


Discovery: Obtaining Evidence

When litigating a civil case, whether in federal or state court, there are various manners of obtaining evidence and a variety of different types of evidence. During the discovery period set by the court, the parties can exchange discovery requests in the form of interrogatories, requests for production, and/or requests for admission. Interrogatories and requests for admission require the receiving party to respond with written answers, whereas requests for production require the receiving party to respond by providing documents and/or items. In addition to written discovery, parties can also obtain testimonial evidence through depositions. Depositions allow the parties to ask certain individuals involved in the lawsuit, or involved in conduct alleged in the lawsuit, (i.e. witnesses) questions regarding the same.

What is an expert witness?

Another type of evidence and/or testimony that a party may use is that of an expert. The type of expert witness used will depend upon a variety of factors, including the law under which the claims arise, the facts, the parties, and/or the damages claimed. For example, if the case is one that involves complex damages, an expert might be retained to calculate damages or, if the case involves medical issues, a medical professional may be retained to explain aspects of the case and/or offer his/her opinion in that area. If a party elects to use one or more expert witnesses, they must file an Expert Disclosure, which notifies the other party of their intention to use an expert witness(es) in the case.

Can use of an expert witness be opposed by a party?

Although a party discloses that they intend to use an expert witness, this does not necessarily mean that party will actually be able to use the expert. The party receiving the Expert Disclosure may, under certain circumstances, file a motion, wherein they request that the court exclude the expert testimony and any corresponding evidence. Under Rule 702 of the Federal Rules of Evidence, a witness qualified as an expert may testify in the form of an opinion or otherwise if: (i) scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (ii) the testimony is based on sufficient facts or data; (iii) the testimony is the product of reliable principles and methods; and (iv) the expert has reliably applied the principles and methods to the facts of the case.

Thus, under Rule 702, as clarified by applicable caselaw, expert testimony is only admissible if (i) the expert is qualified to testify regarding the subject of the testimony; (ii) the expert’s methodology is “sufficiently reliable as determined by the sort of inquiry mandated” in the case of Daubert v. Merrell Dow Pharmaceuticals, Inc.; and (iii) the expert’s testimony will assist the trier of fact in understanding the evidence or determining a fact at issue. These three requirements are known as the qualification, reliability, and helpfulness prongs. Therefore, if the party that received the Expert Disclosure can demonstrate, among other things, that the proposed expert witness is not qualified, the testimony or evidence is unreliable, or the testimony or evidence does not help the judge or jury, then such may be excluded by the court.

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