This article focuses on a seemingly “exquisite” question in the law and lore of expert admissibility battles, namely, what happens when a party’s factual testimony under oath contradicts his own expert’s theory as to how the accident happened and how the alleged defect in the product could have caused the injury? Does the expert simply have a green light to opine irrespective of his party’s version of what happened? Or is he somehow bound by the sworn factual testimony? Is the expert’s opinion impaired by the conflict since the expert testimony must “fit the facts”? This situation occurred in Lee v. Smith & Wesson,1 a divided opinion by the U.S. Court of Appeals for the Sixth Circuit issued on July 29. I refer to the issue as “exquisite” because decent arguments can be made on both sides, depending on the facts.

But first, a short update post-script to last month’s article. In my Aug. 11 column, “Expert’s Causation Opinion Excluded by ‘Zoloft’ MDL Judge,”2 the hazards of an expert “cherry-picking” among technical articles for seemingly supportive statements, while ignoring other abundant literature to the contrary, were discussed. In In Re Zoloft,3 the federal judge on June 27 excluded expert opinions that the antidepressant Zoloft caused birth defects to children born to mothers who took the drug during pregnancy.

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