Few cases in the antitrust canon have been invoked more frequently, for the wrong reasons, than the Third Circuit’s 1977 decision in Bogosian v. Gulf Oil. For four decades now – culminating in the recent release of a decision certifying class in the long-running Mushrooms case – litigants and courts have cited a “presumption” or “short-cut” embedded in Bogosian and argued about whether it suffices to warrant class certification in a given case. This short-cut, however, is more fantasy than reality.
Experts
The Science Behind Expert Disqualification
By Brian A. Hooven on
Basic Test
Why stop at excluding expert testimony when you can exclude the expert? For years, expert witness conflicts doctrine has been developed through the federal common law. Although appellate courts have been relatively silent on the issue, trial courts regularly strike experts that have received confidential information from the opposing party. Courts generally disqualify expert witnesses when a prior relationship resulted in access to an adverse party’s confidential information, and that information could harm that party’s interests in the present case. Whether an expert has an impermissible conflict is generally determined by a two prong test: (1) did the party claiming a conflict reasonably believe they had a confidential relationship with the expert, and (2) did that party give the expert relevant confidential information. Wang Labs., Inc. v. Toshiba Corp. In addition to these two factors, some courts will also consider fundamental fairness and prejudice resulting from disqualification or the denial of disqualification. See e.g. Veazey v. Hubbard.