Not way back we posted about how a turncoat knowledgeable witness who switched to the darkish facet had been precluded from testifying in a number of instances.  We now have one other case so as to add to the checklist – King v. Depuy Orthopaedics Inc., 2023 U.S. Dist. LEXIS 223451 (D. Ariz. Dec. 15, 2013).  Solely this time, Plaintiff argued the turncoat knowledgeable ought to be permitted to testify as a reality witness.  However the courtroom noticed that has a distinction and not using a distinction. 

Particularly, plaintiff claimed to need the knowledgeable to testify concerning feedback he made to an FDA advisory panel in 2001, his discussions with different panel members, and the panel’s choices.  Id. at *5.  However that “purely reality testimony” was inadmissible for a number of causes.  First, his discussions with FDA panelists are rumour. And even when plaintiff claimed to supply them not as proof of a defect however simply as discover, the courtroom didn’t see the distinction and didn’t suppose a jury would both.  So far as proof of discover of defect goes, it’s the similar as proof trying to show the defect and subsequently is inadmissible rumour.  Id. at *6. 

Second, the testimony plaintiff needs to supply continues to be knowledgeable testimony—it entails the witness’ “specialised information” past what a lay individual would know.  Lay opinion testimony shouldn’t concern “specialised explanations or interpretations that an untrained layman couldn’t make if perceiving the identical acts of occasions.”  Id. at *7.  It may hardly be disputed {that a} non-medical skilled would understand or perceive the FDA panel discussions the identical manner an knowledgeable would.  So, the turncoat knowledgeable’s testimony as a “reality” witness would largely overlap with what he would have testified about as an knowledgeable, making it inadmissible. 

Lastly, the courtroom concluded that permitting the turncoat to testify as a lay witness would result in jury confusion.  Id. at *8.  The courtroom couldn’t low cost that jurors would afford larger credibility to the turncoat’s testimony primarily based solely on who he’s, an knowledgeable within the area. 

Backside line, if he walks, talks, and appears like an knowledgeable—he’s an knowledgeable.  And if he’s a turncoat knowledgeable, his testimony is inadmissible.