CFL Expert Witness Testimony & Evidence 2 — Questions and Answers
Question 1: A financial litigator wants to exclude a damages expert whose lost-profits model uses a 'but-for' revenue projection based on no empirical data. The strongest basis for a Daubert motion is:
- The methodology cannot be tested or validated (Correct answer)
- The expert lacks a CPA credential
- The projections exceed the plaintiff's historical revenues
- The expert was retained less than 60 days before trial
Correct answer: The methodology cannot be tested or validated
Untestable methodology is a core Daubert factor; an ungrounded but-for model with no empirical basis typically fails the reliability prong.
Question 2: Which of the following is NOT one of the four original Daubert factors for assessing expert testimony reliability?
- The expert's fee arrangement with retaining counsel (Correct answer)
- Whether the theory has been subjected to peer review
- The known or potential error rate of the methodology
- General acceptance in the relevant scientific community
Correct answer: The expert's fee arrangement with retaining counsel
Fee arrangements are not a Daubert factor, though they may be used for impeachment; the four factors relate to the methodology itself.
Question 3: An expert's opinion that relies on hearsay data may still be admissible if:
- Experts in the field reasonably rely on such data (Correct answer)
- The hearsay exception under FRE 803 applies
- Opposing counsel stipulates to the data
- The court grants a protective order
Correct answer: Experts in the field reasonably rely on such data
FRE 703 allows experts to rely on otherwise inadmissible data if it is the type reasonably relied upon by experts in the field.
Question 4: In financial litigation, the term 'battle of the experts' most often arises because:
- Both sides retain qualified experts who reach opposing conclusions (Correct answer)
- The court requires two experts per side
- Regulatory agencies mandate dueling reports
- Only retained experts may testify on damages
Correct answer: Both sides retain qualified experts who reach opposing conclusions
When both parties retain credible experts with conflicting opinions, the jury must choose between them, creating a 'battle of the experts.'
Question 5: A financial expert who learns mid-engagement that new information materially changes their opinion must:
- Supplement their report promptly under FRCP 26(e) (Correct answer)
- File an amended complaint with new findings
- Withdraw from the case and notify the court
- Wait until deposition to disclose the change
Correct answer: Supplement their report promptly under FRCP 26(e)
FRCP 26(e) imposes a duty to supplement disclosures when an expert's opinion changes based on new information.
Question 6: The primary purpose of a voir dire of an expert witness conducted immediately before testimony is to:
- Challenge the expert's qualifications before the jury (Correct answer)
- Obtain a preview of the expert's opinions
- Impeach the expert with prior inconsistent statements
- Establish the foundation for hearsay exceptions
Correct answer: Challenge the expert's qualifications before the jury
Voir dire allows opposing counsel to question an expert's credentials and seek to have them excluded or their scope limited before substantive testimony.
CFL Expert Witness Testimony & Evidence 2
A financial litigator wants to exclude a damages expert whose lost-profits model uses a 'but-for' revenue projection based on no empirical data.
The strongest basis for a Daubert motion is: