September 30, 2016 Top Story

Expert Allowed to Offer Opinion Based on Undisclosed Sources

Proffer of expert opinion based on private data raises strategic suggestions

Adam E. Lyons

Private, undisclosed information can provide the basis for an admissible expert opinion according to the recent decision in Henkel v. Wagner. The Henkel decision gives important lessons on the strategy involved in attacking expert testimony according to ABA Section of Litigation leaders.

Determining Compensation

In Henkel, the plaintiff brought a legal malpractice suit against her former attorney for his handling of her employment lawsuit. The plaintiff, as part of her claim, was required to demonstrate the amount of compensation she would have received had she been successful in her prior lawsuit. Her appropriate compensation was not easily determined because she had been a highly compensated executive recruiter whose income was dependent on the value she returned to her employer. To provide the necessary damages evidence, the plaintiff turned to expert testimony.

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