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Former Government Employees as Opposing Expert Witnesses

By James H. Rotondo

It is increasingly common in product liability cases for a plaintiff to disclose as an expert a former employee of a government agency such as the Consumer Product Safety Commission (“CPSC”) or the Food and Drug Administration (“FDA”). These witnesses frequently advertise themselves as experts in “product/drug safety” and refer to their regulatory background as their primary qualification. Frequently, however, these witnesses' responsibilities as government employees had little, if anything, to do with the subjects about which they are now testifying. Nevertheless, these witnesses are dangerous if allowed to testify to a jury, because they lend the credibility of the U.S. government to the plaintiff's case.

There are several approaches that defense counsel should consider in seeking to exclude such an expert witness. These include: 1) challenging the qualifications of the witness; 2) determining whether the proposed testimony violates the Ethics in Government Act; and 3) analyzing whether the testimony complies with Rule 702's requirement that it be expert testimony and that it “fit” the facts of the case. Defense counsel must conduct appropriate discovery and/or investigation of the expert to decide which, if any, of these approaches will offer the best opportunity to exclude the expert.

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