Improper use of experts in product liability cases is all too familiar. The proper use of an expert’s specialized knowledge or expertise is to assist the trier of fact to determine a fact at issue. Some lawyers, however, use experts merely as sounding boards to highlight key facts and argue conclusory inferences in support of a party’s case. These “experts” are typically offered as “historians” and arbiters of “ethical” conduct.

A recent decision by Judge Lewis E. Kaplan of the Southern District of New York in the Rezulin multi-district litigation slammed the door on the practice of “engag[ing] … ‘expert’ witnesses whose intended role is more to argue the client’s cause from the witness stand than to bring to the fact-finder specialized knowledge or expertise that would be helpful in resolving the issues of fact presented by the lawsuit.” In re Rezulin Prod. Liab. Litig., 309 F. Supp. 2d 531, 538 (S.D.N.Y. 2004) (“Rezulin”). These so-called experts “lend their credentials and reputations to the party who calls them, without bringing much, if any, relevant knowledge to bear on the facts actually at issue.” Id. Courts are becoming increasingly sensitive to this problem. For example, in Summers v. A.L. Gilbert Co., 69 Cal. App. 4th 1155, 1185 (1999), the California Court of Appeal found that “[r]eading [plaintiffs' expert]‘s testimony in its entirety, we conclude that he was advocating, not testifying. In essence, cloaked with the impressive mantle of ‘expert,’ [plaintiffs' expert] made plaintiffs’ closing argument from the witness stand.”

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