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In the first part of this article, we discussed why we need experts in international arbitration, how to find the right expert to instruct, and some practical guidance on how to work with experts for the best results. In this second part of the series, we consider what expert reports should cover, the ins-and-outs of expert meetings and some practical tips and tricks for oral testimony.

Last month, the Advisory Committee on Evidence of the Judicial Conference of the United States’ Committee on Rules of Practice and Procedure voted to unanimously to recommend certain amendments to Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony.  This vote signals imminent changes that could significantly affect federal practitioners’ requirements to demonstrate their experts’ reliability.

A proposed amendment to Federal Rule of Evidence 702, which governs the admissibility of expert testimony in federal court, could clarify the evidentiary burden on proponents of expert testimony and a court’s role regarding its admissibility. Motions under Rule 702, frequently called Daubert motions after the Supreme Court’s opinion Daubert v. Merrell Dow Pharmaceuticals Inc., are used to limit or otherwise exclude an expert’s testimony to a jury. These motions are often critical to a case’s success, especially in fields that rely heavily on experts such as antitrust, product liability, toxic torts, and environmental litigation. An amendment to Rule 702 currently under consideration looks to clarify the proper evidentiary standard for such motions.

In the recent case of Kyla Shipping Co Ltd v Freight Trading Ltd [2022] EWHC 376 (Comm) the English Commercial Court rejected a claim to litigation privilege over preliminary investigations conducted by a party appointed expert on the basis that litigation in respect of the matter being investigated was not in reasonable prospect at the relevant time. However, the court also held that there was no waiver (or a wider collateral waiver) of privilege in respect of documents relating to how the mispricing claim was discovered (including the expert’s investigations) by the claimant’s solicitor having referred to them in a witness statement.

Litigation privilege applies to confidential documents or communications where at the time the communication or document was created litigation was in reasonable prospect; and it was created for the dominant purpose of the litigation.

On January 22, 2017, the U.S. Supreme Court issued its first 5-4 merits decision of the term in Artis v. District of Columbia. In this opinion, the Court held that bringing state claims in federal court stops the clock on the statute of limitations for those claims.

Under 28 U.S.C. § 1367, federal courts may exercise supplemental jurisdiction over state law claims that arise from the same case or controversy presented in the federal lawsuit. If the federal court later dismisses the federal claims that independently qualify for federal jurisdiction, however, then the court will also ordinarily dismiss the state claims that it had supplemental jurisdiction over as well. As such, 28 U.S.C. § 1367(d) contains a tolling mechanism providing that the “period of limitations for” refiling a dismissed state claim in state court “shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” The Artis opinion dictates how this tolling mechanism operates.

On July 11, 2017, the Florida Supreme Court accepted jurisdiction of a case in which it is expected to finally decide, conclusively, whether Florida courts are to apply the Frye or Daubert standard to determine admissibility of expert or scientific evidence.

The Frye standard, which was adopted in Florida in 1952, applies to expert testimony based upon new or novel scientific evidence. Under the Frye standard, “in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’”