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When the Expert Witness Is Unavailable to Testify

Paloma Capanna, Attorney at Law

April 16, 2013


Recent litigation news around the death of an expert witness at or near the time of trial is a poignant reminder about the critical importance of preparation for trial, including the use of understudies in case the star cannot take center stage.

In a recent high profile case, the expert witness passed away, and the party asked to substitute another expert using the original expert witness report.

Opposition was mounted by the opposing party that the original expert witness report was not the product of the proposed, substitute expert witness and could make the argument upon cross-examination that the original expert witness report should not be admitted into evidence.

While you might think “What are the odds?” of the passing of an expert witness at the time of trial, there are various circumstances in which an expert witness is not able to provide the anticipated analysis, report, or testimony.

An expert witness, as with any witness, can take ill, be involved in an accident, fail to reach the conclusion you were anticipating, be disqualified, or be aggressively cross-examined and contradicted by an opposing expert.

Then what?

Prudence dictates that a litigator applies the same common sense strategy to the expert witness as to any witness of fact.

First Question: What are you missing if the witness doesn’t testify?

Second Question: What’s the work-around using other witnesses?

The bottom line question is then how these two responses could change the odds of surviving a motion to dismiss.

If your answer is that without an expert witness the case is likely to be dismissed, then it’s time to develop a contingency expert witness plan.

One of your file folders should be “Search for Expert Witness.”

Once you have selected your expert witness, you would do well to put the remaining candidates in a ranking order with an index of pluses and minuses as to each.

At the same time, analyze the factors that caused you to select the primary expert witness and not the second and ask yourself whether the second place expert witness would be acceptable in a pinch. If not, continue to develop the search for the expert witness until you identify an appropriate back-up.

Then, you need to set a budget for the alternative expert witness.

If the budget will allow, get the alternate on retainer as an alternate.

Keep him informed of milestones in the case and keep him well-informed about trial dates.

If a fee is required for the alternate expert to hold the trial dates, tender that payment.

The broader question is how much of the discovery and of the primary expert witness materials you can afford to have the alternate expert witness review and discuss.

You’ll also need to consider if and when you are required to disclose the secondary expert witness as part of your discovery responses.

Again, the goal is achieving an acceptable risk level that the trial will go forward, even if certain unlikely events transpire.

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