November 16, 2016 Articles

The Science Behind Expert Disqualification: A Guide

Why stop at excluding expert testimony when you can exclude the expert?

Brian Hooven

Why stop at excluding expert testimony when you can exclude the expert? For years, the doctrine of expert witness conflicts has been developed through the federal common law. Although appellate courts have been relatively silent on the issue, trial courts regularly strike experts because of conflict issues. Courts will disqualify an expert witness when a prior relationship resulted in access to an adverse party’s confidential information and the information could harm that party’s interests in the present dispute. Courts generally follow a two-part test to determine whether an expert has an impermissible conflict: (1) Did the party claiming a conflict reasonably believe it had a confidential relationship with the expert? (2) Did that party give the expert relevant confidential information? Wang Labs., Inc. v. Toshiba Corp, 762 F. Supp. 1246, 1248 (E.D. Va. 1991). In addition to these two factors, many courts will also consider the fundamental fairness and prejudice resulting from disqualification or denial of disqualification.

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