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May 21

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Sixth Circuit Provides Practical Guidance Regarding Expert Testimony Admissibility

In Newell Rubbermaid, Inc. vs. The Raymond Corporation (No. 10-3912, April 3, 2012), the Sixth Circuit evaluated the trial court’s exclusion of Plaintiff’s expert testimony, and related successful defendant motion for summary judgment because of a failure to have minimally-required expert witness evidence. In upholding the trial court’s exclusion under the abuse of discretion standard, the Sixth Circuit provided practical guidance regarding what is expected for expert testimony.

In upholding the district court’s refusal to admit Newell’s expert testimony, the Sixth Circuit stated:

The district court identified at least four red flags in [the expert’s] methodology: anecdotal evidence, improper extrapolation, failure to consider other possible causes, and, significantly, a lack of testing.”

The four items to be avoided that are listed in the above quote can be used as a quality control check for what should be done. Expert witnesses should:

  1. Use unbiased sampling that is representative of what is tested;
  2. Extrapolate results using either the rigors of statistical sampling, or another applicable generally accepted approach;
  3. Consider alternative explanations for the observations at issue; and
  4. Test results to the extent allowable in the circumstances.

Additional information regarding this case is provided here.

About the author

David Nolte

I am a founding principal of Fulcrum Inquiry, an accounting and economic consulting firm that performs damage analysis for commercial litigation, forensic accountings, financial investigations, and business valuations. I am a Certified Public Accountant (CPA) and an Accredited Senior Appraiser (ASA), as well as having other professional credentials. I regularly serve as an expert witness involving damages measurement. My litigation-oriented resume is on Fulcrum's website.

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