It is not uncommon for a litigant to rely on the testimony of an expert hired by another litigant in the same or different proceeding. For example, one or more defendants in an antitrust conspiracy case might forego hiring their own expert(s) and instead rely upon a larger defendant who agreed to foot the bill for a high-priced expert to prepare a report.
Even absent such an agreement, a defendant with fewer resources might decide to piggyback off of a codefendant’s efforts and resources. Codefendant’s counsel will then take the lead on working with the experts on their reports and defending them during the depositions, wherein the experts might give some helpful testimony for the defense. If that codefendant settles with plaintiff before trial, and the expert is beyond the court’s subpoena power, will a court permit another party to use that expert’s deposition testimony at trial in lieu of live testimony?
