In 1999 the U.S. Supreme Court in decided Kumho Tire Co., Ltd. et al. V. Carmichael,119 S.Ct. 1167 (1999) set the standards for the admission into evidence of a expert witness, causing federal district courts to more carefully scrutinize expert testimony.
Previously, the Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993) that a trial judge must ensure that any and all scientific testimony or evidence that went to the jury must be "not only relevant, but reliable." Thus, the trial judge was the gatekeeper, to ensure that expert's opinions are well grounded and sufficiently reliable to be heard by the jury. The leading Third Circuit case after Daubert is In re: Unisys Savings Plan Litigation, 173 F.3d 145 (3rd Cir. 1999), cert. den. 1999 WL 552842 (Oct. 18, 1999). filed wherein the Third Circuit held that the Daubert's standard apply to accounting experts as well as scientific experts.
The U.S. Supreme Court held in Kumho that Daubert's requirements of reliability not only applied to scientific experts, but to all experts. This means that lawyers may push trial judges to carefully evaluate expert reports and to keep the jury from hearing expert testimony.
Thus, an expert witness with knowledge, skill, experience, training or education may offer an opinion in his or her areas of expertise which is relevant to the case and which assists the trier of fact to understand the evidence or determine a fact issue. Under Daubert and Kumho , the opinion of the expert must be based on reliable methodology or analysis and not subjective belief or unsupported speculation. Reliability of expert testimony is as important as the relevance of the expert testimony.
When selecting an expert witness, make sure the expert prepares his/her report on a sound theory that is accepted in the field or that has been published in the field. Consider having the expert include several alternative theories, especially when preparing a damage analysis or calculation. Prudence requires that the expert report site literature in the field to support his/her opinion.
BUSINESS DISPUTES IN PHILADELPHIA TO BE HANDLED BY A NEW PHILA. COMMERCE CASE PROGRAM.
Starting next year, all business litigation matters in Philadelphia will be handled by a new Commerce Case Program for the Philadelphia County Court of Common Pleas. Administrative Judge John W. Herron and Judge Albert W. Sheppard have been assigned to the new unit which will handle cases filed after January 1, 2000. No business cases that are already filed will be transferred to the new program. The Legal Intelligencer reported that Common Pleas Court handles about 2000 business related cases each year. A third judge will be added if the program is successful and if the case load warrants it.
The Phila. Commerce Case Program will be patterned after a New York program. New Jersey already has a business specialty court and Delaware has a nationally respected Chancery Court for business litigation. The Philadelphia Commerce Case Program will handle the following types of cases:
- Disputes between business enterprises.
- Disputes over internal affairs, governance or the right or obligation of business owners, shareholder and partners.
- Corporate trust actions.
- Commercial insurance disputes.
- Intellectual property disputes.
- Business class actions.
A PENNSYLVANIA JUDGE FILES A DEFAMATION LAWSUIT AGAINST A ANONYMOUS AMERICAN ONLINE CRITIC
Is there a right to anonymity on the Internet? What if the anonymous person defames another- will the law protect the identity of the person doing a wrong?
This is the issue in a lawsuit filed by Pittsburgh State Superior Court Judge Joan Orie Melvin who alleges she was defamed when a critic, using the pseudonym "Grant Street 1999" posted on American Online that the Judge lobbied the Governor on behalf of a judicial appointee Such alleged behavior which would constitute a violation of the judicial code of ethics. The Legal Intelligencer reported American Online refused to reveal the Grant Street 1999 identity. The Intelligencer also reported that American Online refused a request by the Associated Press for the identity of the Blue Knight, the anonymous critic of the Pittsburgh Police Department. In a different case, the Intelligencer reported American Online revealed as least one identity when it gave the name of a U.S. navy sailor to a Naval investigator; however, American Online later reached a monetary settlement with the sailor and said it made a mistake by revealing the sailor's name.
*article courtesy of Alan P. Fox of Capehart & Scratchard, afox@capehart.com.