• April 16, 2013

In litigation around Reese’s peanut butter cups, one side comes up with a peanut butter expert and one side comes up with a chocolate expert.  Each moves to exclude the other side’s expert for the expert’s lack of knowledge about chocolate and peanut butter, respectively.

OK. I totally made that up (although you can be sure that candy-coated litigation is very real).

But there is a common disconnect in a lot of civil litigation where opposing parties each adopt experts who come at the legal issues from two different disciplines or areas of expertise and both seem to be talking past one another than engaging one another on the same wave-length.

Take Student Paths v. OnSharp, pending in the U.S. District Court (D. Minn) (Doty, Sr. J.).

OnSharp is a web-based technology company that contracted with Student Paths to process its student data…Student Paths provides student recruiting services to colleges, universities and the armed services…

Due to a computer programming error, OnSharp inadvertently deleted duplicate [Student Paths] student interest cards in 2008 and 2009…In 2010, the first year after the deletions, sponsors renewed their contracts with Student Paths at a rate of 32.56%.  Prior to the programming error…60.36% of Student Paths’ [customers] renewed their contracts.  After seeing the decline in renewals, Student Paths altered its business model and invested in additional staff and infrastructure.

When Student Paths discovered the deletions, it reverted to its prior model and laid off the employees tasked with implementing the new model.

So Student Paths hires an expert in the “enrollment management field”  (peanut butter) (and not economics or damages valuation) and OnSharp hires a “forensic expert” qualified to offer damages calculations and business valuation (chocolate) (but not “enrollment management”).

Actually, this is a classic and not random disconnect.  At least from the distance of a non-party with no stake in the case and insufficient resources to dig into the detail, it appears that OnSharp blew it, that Student Paths hired an expert with substantive knowledge about the task that OnSharp was to perform and with the knowledge and expertise to offer an opinion as to how OnSharp blew it.

OnSharp, on the other hand, retained a “hired gun,” a “forensics expert,” whose expertise lies more in damages claims in litigation, a kind of methodological attack rather than a substantive defense.

And, if this perspective is correct, then Judge Doty’s recent order on the cross-motions seems just right: they both will be allowed to testify in their respective areas of expertise but not in those areas where they are unqualified.

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