• May 19, 2015

Cases of claimed egregious mismatches between proposed expert testimony, the appropriate subjects to be argued and decided in a lawsuit, and proposed intended expert witnesses are endemic in our legal system.

Of course, you’ve got your quacks — the pretend experts. Excluding them is relatively uncontroversial (although we will not all agree about certain disciplines and whether experts in the disciplines have evidentiary value or are quacks across the board (homeopathy, acupuncturists, hand-writing analysts, say)).

Then you have your “expert judge” or “expert jury” experts — that is, purported experts offered to testify as to the law (that would be the “expert judge”) or, without any truly specialized knowledge, training, or expertise, an expert offered to testify as a fact-finder (the “expert jury”). These are a subtler variant of “quack experts” because they are offered to simply tell the judge or jury what to do.

These are easy cases to exclude proposed experts. But how about, say, a proposed expert in “the conduct of executives in the U.S. medical device or healthcare business vis-à-vis confidential job searching“?

That gets a little trickier, does it not? Presumably someone with decades of experience in the industry would have insights and specialized knowledge of the subject matter is not telling the judge what the law is. At least not at first glance. But if the proposed expert is going to offer an opinion as to how executives in these industries behave as a general matter, could he be surreptitiously offering an opinion as to the scope of the fiduciary duty owed by employees to their employers? And is this not a matter of law for the judge?

In St. Jude v. Grubiak (previously and repeatedly covered on Minnesota Litigator), Plaintiff St. Jude is taking a swing at excluding two experts identified by Defendant Grubiak. It’s a hard-hitting brief. It will be interesting to see how strong Grubiak’s response will come across and how U.S. District Court Judge Joan N. Ericksen will decide the motion.


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