Courts are becoming more assertive in not allowing experts to testify. Because of the success obtained when an expert can be thrown out, filings to eliminate the other side’s expert(s) are become de rigueur. This article summarizes a study on this point.
A New York court in re: Wathne Imports, Ltd. v PRL USA, Inc. (NY Slip Opinion 07045, Appellate Division, First Department, October 18, 2012) reversed a trial court who decided, as a matter of law, that an opinion the trial court did not believe was correct should be disregarded without the jury even hearing the analysis. The excluded testimony involved a CPA who was providing damages testimony, where disagreement existed as to what was a proper point of comparison in making the calculations. The Appellate Court decided:
We reverse. The perceived flaws in plaintiff’s expert’s analysis are relevant to the weight a jury should give to the expert’s report and testimony; they do not present sufficient grounds for ruling that analysis inadmissible. Newman’s analysis and conclusions should be challenged through cross-examination; the jury must decide whether or not his methodology was appropriate. As the United States Supreme Court said in Daubert vs. Merrell Dow Pharms., Inc. (509 US 579, 596 ), “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attaching shaky but admissible evidence.”