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Uncertainties of Federal Disclosure Requirements for Employee Experts

By John Sear and Ryan McCarthy

Product liability litigation is waged through battles of the experts. Hotly contested disputes over expert testimony arise early and often, from discovery through trial and even appeal. Disputes intensify when parties use their own employees as experts because the law governing employee expert disclosure remains undeveloped.

A party may designate an employee as an expert for many reasons. Most companies employ people with varied education, training, and experience in fields relevant to their business. Companies may designate one of their own as an expert to minimize expense. However, designating an employee as an expert may derive from the more lofty belief that a person possessing expertise and knowledge of the company's product is better equipped than a “hired gun” to provide reliable, persuasive expert testimony. After all, an overriding objective of the rules governing expert testimony “is to make certain that an expert … employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). How better to achieve that goal than to use experts practicing in the relevant field, in the real world, not the often artificial world of litigation?

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