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Practice Tip: Firing Your Expert

By Lawrence Goldhirsch and Josh Vitow

During a recent product liability trial, the plaintiff's expert opined in his original disclosure that the subject machine was defective because it lacked a clutch safety mechanism. Trial counsel, retained just weeks before jury selection, learned from the same expert that no machine in the industry contains such a mechanism. They concluded that cross-examination of the expert on this point would probably outweigh any benefit that such testimony might add to the plaintiff's case, and that a simpler explanation for the accident was the manufacturer's failure to place conspicuous warnings to the user on how to operate the device properly. They decided that it would be wise to have the expert testify about the missing warnings instead of the design defect. The problem was that the expert's design defect theory had been presented in the plaintiff's pretrial disclosure statement, which had been served on the defendants, but nothing was disclosed about the failure to warn.

Should counsel call the expert to present his modified theory of liability to the jury and deflect questioning from defense counsel about the theory of the missing clutch or dispense with his testimony altogether? Since a manufacturer's liability for a failure to warn is within the province of a lay juror's scope of understanding and does not require expert testimony, counsel decided to 'fire' the expert.

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