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Practice Tip: Playing Poker with Experts

By James H. Rotondo

Many product liability defense lawyers have had great success at one time or another in taking the deposition of a plaintiff's key engineering expert. They can tell you stories about depositions when the expert: 1) offered opinions inconsistent with prior expert reports, deposition or trial testimony, or several articles that he has written in engineering publications; 2) made errors in calculations that supposedly formed the basis for his opinions; 3) admitted that he lied about his qualifications on his resume; or 4) while answering questions, was evasive, sweated profusely, or fumbled around for answers so badly that he was incoherent. On these occasions, it is easy to believe that no jury could possibly find the expert to be a credible witness in the unlikely event that a court were to deny the forthcoming Daubert/Kumho motion.

But what happens if, after the discovery period ends and after you file that long-anticipated Daubert/Kumho motion, plaintiff's counsel responds by filing a motion to withdraw the original, discredited expert and to substitute a new one ' one with superior qualifications, and a much stronger theory of liability? In support of the motion, the plaintiff appeals to the court's discretion, and asserts simply that the expert's horrendous answers to questions at the deposition somehow justify a substitution of experts long after the discovery deadline closed. Your initial reaction would likely be outrage. You might think that the court could not possibly allow such a complete disregard of its own scheduling order and the Federal Rules of Civil Procedure. Unfortunately, depending on a number of factors, including the jurisdiction in which you practice, the court may well permit the substitution of experts.

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