Perhaps the most valuable aspect of expert testimony is being able to provide a professional opinion. In virtually all other testimony, witnesses are only permitted to state their personal observations. In limited instances, they are permitted to offer their opinion when such an analysis is within the purview and experience of the common man. “She appeared angry,” “he was driving erratically,” and so forth.
An expert witness, however, is not only permitted but is expected to offer her opinion regarding things that are not typically within the experience of a layman. But even expert testimony has limitations.
Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398 (6th Cir. December 14, 2006) (No. 05–1095), involved the alleged misappropriation of trade secrets by one of my childhood icons, Lionel Trains.
To summarize, Mike’s Train House (MTH) had designed a scale replica of a particular train. Korean company Samhongsa assisted MTH in the design phase. Korea Brass (KB), a supplier of wax castings for model trains, worked with Lionel. At some point, KB hired a former employee of Samhongsa, and that’s when the trouble started. MTH accused the former employee of illegally retaining and sharing MTH’s proprietary design drawings, which allegedly also ended up benefiting Lionel Trains As chance would have it, Lionel was developing a model of the same train as MTH.
In Korea, the employee was prosecuted by Korean authorities and convicted of criminal misappropriation of trade secrets.
When MTH examined the Lionel version of the model train, they decided to sue Lionel in the United States District Court for the Eastern District of Michigan in Detroit, claiming that Lionel had been enriched through the misappropriation of its trade secrets.
At trial, MTH relied upon the testimony of a mechanical engineering expert witness, who testified that approximately fifty-five percent of the design drawings had been misappropriated. Notwithstanding the fact that this mechanical engineering expert came to his conclusion using his own methodology, he then buttressed his conclusion by stating that his professional opinion was consistent with the expert who testified in the related case in Korea.
Even though experts are invited to offer their own opinions, they are not asked to rely upon the opinions of other experts in reaching their conclusion. In providing support for their scientific methodology they may demonstrate (in fact under Daubert, they must demonstrate) that their approach is, inter alia, generally accepted within their field of expertise. However, that is the extent to which they may reference other experts’ research.
After trial, the jury ruled in favor of MTH. Unfortunately for MTH, their civil court victory was short lived as the 6th Circuit reversed and remanded, due to the lower court’s error in permitting the reference to the expert witness in Korea.
The Sixth Circuit’s decision is quite logical. It was hard enough for Lionel to rebut the testimony of one mechanical engineering expert. But instead they found themselves confronted with the “testimony” of two experts, yet only able to cross-examine one of them. And that’s just not fair.
Your expert, whether a mechanical engineer or otherwise, must provide his own opinions based upon his own research and may not stand upon the shoulders of other, albeit reliable, experts in promoting his position.
The moral of this story is if you want the value of two independent experts, you’ll need to hire them both!
By: Ian Heller, Attorney at Law