01 / April 2014
Orthoflex' expert witness ignores key testimony rule and crumbles
Orthoflex, Inc. v. Thermotek, Inc., 2013 U.S. Dist. LEXIS 174670 (Dec. 10, 2013)
One of the commandments James J. Mangraviti (SEAK Inc.) gave to participants of his two-day workshop at the recent ASA San Francisco expert witness conference was to testify only to subjects in their "true" area of expertise. Attorneys, he cautioned, often think it's no big deal to touch on related subjects, but that's not true. Straying from one's field can make an expert vulnerable in deposition and under cross-examination. The heavy price is exclusion and a damaged reputation.
A recent case in which a rebuttal expert risked credibility sends a warning. Even though he critiqued the opposing expert's lost profits calculation related to a claim for unfair competition, he admitted he was unfamiliar with the very damages concepts on which the calculation was based. On cross-examination, he did not know what the damages for unfair competition were nor for unjust enrichment and he appeared vague when asked about the concept of lost profits. His report and testimony raised a host of other questions that caused the court to find them inadmissible.
For more on the case, click here ...
An extended discussion of the SF expert witness conference appears in the April edition of Business Valuation Update [subscription required]