Not long ago we posted about how a turncoat expert witness who switched to the dark side had been precluded from testifying in several cases.  We have another case to add to the list – King v. Depuy Orthopaedics Inc., 2023 U.S. Dist. LEXIS 223451 (D. Ariz. Dec. 15, 2023).  Only this time, Plaintiff argued the turncoat expert should be permitted to testify as a fact witness.  But the court saw that has a distinction without a difference. 

Specifically, plaintiff claimed to want the expert to testify regarding comments he made to an FDA advisory panel in 2001, his discussions with other panel members, and the panel’s decisions.  Id. at *5.  But that “purely fact testimony” was inadmissible for several reasons.  First, his discussions with FDA panelists are hearsay. And even if plaintiff claimed to offer them not as evidence of a defect but just as notice, the court did not see the difference and didn’t think a jury would either.  As far as evidence of notice of defect goes, it is the same as evidence attempting to prove the defect and therefore is inadmissible hearsay.  Id. at *6. 

Second, the testimony plaintiff wants to offer is still expert testimony—it involves the witness’ “specialized knowledge” beyond what a lay person would know.  Lay opinion testimony should not concern “specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts of events.”  Id. at *7.  It can hardly be disputed that a non-medical professional would perceive or understand the FDA panel discussions the same way an expert would.  So, the turncoat expert’s testimony as a “fact” witness would largely overlap with what he would have testified about as an expert, making it inadmissible. 

Finally, the court concluded that allowing the turncoat to testify as a lay witness would lead to jury confusion.  Id. at *8.  The court could not discount that jurors would afford greater credibility to the turncoat’s testimony based solely on who he is, an expert in the field. 

Bottom line, if he walks, talks, and looks like an expert—he’s an expert.  And if he’s a turncoat expert, his testimony is inadmissible.