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Motions in to strike expert witnesses - What are your thoughts?

Are motions in to strike expert witnesses appropriate in arbitration? Why or why not?

Please provide your thoughts/comments below.

Comments (12)

Under well-recognized norms, the tribunal may disregard the expert's opinions only where the expert has been requested to appear for the hearing and fails to do so without a valid reason.

Other objections to the expert's opinions go to the weight of the evidence. There are no Frye or Daubert motions to strike unqualified experts in arbitration.

In my view, a party is entitled to pick whomever they choose as an expert. If the other side challenges that person, say for not being qualified, they may do so and I would listen to the argument. However, even if I agreed that the 'expert' wasn't qualified, I would not strike that person just on their say so. Just as with any piece of evidence, arbitrators can put whatever weight they deem appropriate in it - experts included.

Charles Molineaux:

Jeff:
I assume this refers to striking the expert's testimony, not striking his name from a list of proposed witnesses or striking him physically!
The answer to your question is: It depends. There are 3 problems with experts:
1) Whether he or she is really a bonafide expert in an area useful to the case, sometimes determinable from the resume;
2) The very partisan "expert" who proceeds in the style of a hired gun -- with no effort or pretence at impartiality;
3) The expert who, acting like the party representative or attorney, overreachingly tells the tribunal how to decide the ultimate issues in the case.
This is not to imply that experts cannot be helpful in arbitration. In fact, the so-called "hot tubbing" of experts (experts discuss and cross examine each other) can be very productive, assuming that parties' counsel and the experts behave reasonably courteously!
Regards, Charles Molineaux

steve conover:

For this question, I assume the motion to strike the expert witness is made or submitted after the witness testified. I think this is the same assumption made by Mr Molineaux above.
Each party can present whomever they choose as an expert witness. The adverse-party's challenge to an expert(i.e. for absence of factual info or for not being "qualified")should be presented through cross-examination. Effective cross of the expert would likely eliminate the need to move to strike the witness' testimony. As arbitrators, we can weight the evidence but generally shouldn't "strike" evidence.

Experts in arbitration can serve a useful purpose if the area they are opining upon is not clear to the arbitrator. I would not strike the testimony of an expert witness without proper consideration of the entire matter. I had one matter where the question related to vicarious punitive damages and involved three state laws. I found myself in need of an expert witness to clarify several questions I had regarding the liability and relief requested. Therefore I believe that the arbitrator should consider the facts and whether or not the proposed expert witness can inform the arbitrator and or the panel prior to striking the testimony.

Although most arbitral institution rules state that conformity to formal or legal rules of evidence shall not be necessary, those rules usually also empower the arbitrator to determine what evidence is admissible, relevant, and material as well as necessary to an understanding and determination of the dispute. Expert opinions should be subject to all the arbitrator's discretion granted by the parties' arbitration agreement, applicable arbitration rules, and applicable law. Motions to strike are appropriate to streamline the final evidentiary hearing, eliminate surprise, and to prevent cumulative or irrelevant expert opinions from hijacking the arbitration process. The arbitrator should always be mindful of the cognitive biases that can be triggered in the arbitrator by expert testimony.

Judge Gerald Harris:

Another factor to be considered is whether the subject of the proposed expert testimony is susceptible to resolution by application of opinion. If the issue is primarily a factual one that can be readily determined by a layman then expert testimony is likely to be inappropriate.

Patrick Westerkamp:

Absent truly unusual circumstances, a motion to strike an expert's testimony is inappropriate. Better opposing counsel makes his/her points on cross-examination, or during closing argument. Too often, expert testimony is of little or no assistance to the arbitrators. This can be hammered home in post-hearing briefs, or during oral closing.

Anonymous:

While it is almost always a mistake to ever say "never", such motions are not generally appropriate in arbitration proceedings. There is no jury to protect from "junk science" or the like. The costs of presenting and deciding a "Daubert" motion are better avoided in arbitration.

Murry Cohen:

Most of the responses above assume, contrary to Mr.Skulkin's reponse, that an arbitrator may strike an expert's testimony for reasons other than the expert's failure to appear at the hearing. Is Mr. Skulkin right that "under well recognized norms" there are no Daubert motions in arbitration?

Eric H. Hotzman:

Motions to preclude an expert's testimony or to strike it are unnecessary in arbitration. Daubert or Frye rues exist primarily to ensure that juries do not hear testimony from any expert whose opinion has an insufficient basis. Competent cross-examination of an expert witness (and testimony of an opposing expert) are sufficient to establish how much weight, if any, the arbitrator(s) should give to the expert's testimony.

Anonymous:

The question is not whether a motion to strike is appropriate, but rather, what should the Arbitrator do if such a motion is made. And of course, that depends.I agree with the above comments. It's not whether Daubert of Frye applies. We apply relaxed rules of evidence in arbitration proceedings. So we probably should not strike the testimony, but consider the weight.

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