2012: A Year of Unique and Trending Expert Witness Decisions

2012 is going to be remembered as a year with a $1 billion verdict in a patent infringement trial between computer industry giants.

What is less likely to be remembered in this or other cases on various top 2012 verdict lists are the expert witness battles that were fought, in each case, in one form or another.

So, what were some of the expert witness arguments from top 2012 jury verdict cases? Here is a summary of three unique and trending expert witness rulings this year to keep in mind as you work with expert witnesses.

Leading the list was a novel argument that an expert witness should not be permitted to testify where he had previously signed a non-disclosure agreement. It’s a good question to check with your own expert witnesses. Many times, we hire and qualify a witness as an expert because that person has hands-on experience in fields of medicine, law, engineering, or construction. Add to your checklist of expert witness selection to obtain copies of all employment contracts, non-disclosure agreements, and no-compete agreements.

Work history can also become a catch-22 for expert witnesses, as some experts in 2012 were criticized as being so-called professional witnesses. A fairly standard question to ask a prospective expert witness is whether he has previously testified, in what case, whether there was a reported verdict and appeal, and whether you can obtain copies of deposition transcripts, expert reports, and written motions seeking to prohibit or limit his expert testimony. It is not an automatic negative for an expert witness to have testified in other cases. Indeed, it could signal that they are high value experts, but be aware and anticipate both sides of the work experience argument.

It was also a busy year for experts defending their methodology at Daubert hearings. The “Daubert hearing,” so called after a ruling in Daubert vs. Merrell Dow Pharmaceuticals (1993) and subsequent cases, allows an examination into the methodology used by an expert witness in federal court. If there was a theme among appellate cases, it was in favor of conducting Daubert hearings, although failure to do so may or may not result in reversal of a verdict on appeal.

By: Paloma A. Capanna, Attorney at Law