The Science Behind Expert Disqualification: A Guide

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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Brian Hooven is an associate with Proskauer Rose LLP in New York City, New York.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).


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