Expert Witness Testimony & Evidence Flashcards

When a financial expert testifies about lost profits, the standard requiring the plaintiff to establish the fact of damage with reasonable certainty—but not necessarily the amount—is known as:

Answer: The lost profits certainty doctrine

Courts require reasonable certainty that damage occurred, but permit more flexibility in quantifying the precise amount of lost profits.

Under FRE 705, an expert witness may state opinions without first disclosing the underlying facts unless:

Answer: The court orders otherwise or opposing counsel asks on cross

FRE 705 allows experts to give opinions without disclosing the basis first, but the court can order disclosure and opposing counsel may elicit it on cross.

A financial expert's written report contains a calculation error that overstates damages by 15%. The retaining attorney discovers this the day before trial. The appropriate action is:

Answer: File a supplemental report correcting the error immediately

FRCP 26(e) requires prompt supplementation; failing to correct known errors violates disclosure obligations and could result in sanctions.

Which standard governs admissibility of expert testimony in most state courts that have not adopted Daubert?

Answer: Frye general acceptance standard

Many states still follow Frye, requiring that the scientific technique be generally accepted in the relevant scientific community.

An expert retained by plaintiff submits a rebuttal report responding to the defense expert. Under FRCP 26(a)(2)(D)(ii), the deadline for rebuttal reports is typically:

Answer: 30 days after the opposing expert's report

FRCP 26(a)(2)(D)(ii) sets the default rebuttal deadline at 30 days after the other party's expert disclosure.

A financial expert uses a discounted cash flow model to calculate damages. Opposing counsel argues the discount rate selected is arbitrary. This challenge most directly attacks which Daubert factor?

Answer: Reliability and testability of the methodology

An arbitrarily selected discount rate undermines the reliability and testability of the DCF model, a core Daubert reliability concern.