Type of Expert in .NET

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Financial experts Non nancial experts
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Total
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Note: Multiple experts could be challenged in the same case Non nancial experts include medical doctors, engineers, forensic scientists, psychologists, and psychiatrists, among others
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Exhibit 473
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Expert Witness Challenges (Cases Citing Kumho Tire vs Carmichael ); January 2000 December 2002
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475 EXCLUSION OF PLAINTIFF FINANCIAL EXPERTS
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47 9
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The rate at which nancial experts have been excluded, once challenged, has declined from
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545 percent in 2000 to 409 percent in 2001 to 303 percent in 200219 As discussed previously, this is likely the result of two forces At the margin, with increases in the number of challenges, the likelihood of a successful challenge to a nancial expert witness may be less Also, at the margin, the quality of work prepared by nancial expert witnesses may have improved in response to increased scrutiny stemming from tightened admissibility guidelines Both of these forces likely explain the decline in the exclusion rate over the 2000 2002 time period20 Interestingly, based on the data in Exhibit 474, it appears as though a crossover has occurred with respect to the rate of exclusions of nancial and non nancial expert witnesses once challenged Whereas in 2000, when challenged, nancial experts were excluded at a higher rate than non nancial experts, by 2002 non nancial experts were excluded at a higher rate21 In 2000, 545 percent of the challenges of nancial experts resulted in a partial or complete exclusion, declining to 303 percent in 2002 In contrast, 462 percent of the challenges of non nancial experts resulted in a partial or complete exclusion in 2000, declining only slightly to 438 percent in 2002
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474 REASONS FINANCIAL EXPERTS WERE EXCLUDED: RELEVANCE, RELIABILITY, AND QUALIFICATIONS
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We next determined the reasons nancial experts were excluded or partially excluded22 This analysis was done in the context of the Rule 702 focus on the quali cations of the proposed expert as well as the relevance and reliability of the planned testimony When nancial experts are excluded, it is more likely to be as a result of the lack of reliability in the planned testimony than as a result of relevance issues or the quali cations of the expert While multiple reasons were often given for the exclusions of the nancial experts studied, reliability was mentioned in over 80 percent of the exclusions, relevance was mentioned in half of the exclusions, and quali cations were mentioned in a quarter of the exclusions Finally, when nancial expert testimony is determined to be unreliable, it is more likely to be a result of problems with the quantity or validity of the data used by the expert than with any of the Daubert criteria
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475 EXCLUSION OF PLAINTIFF FINANCIAL EXPERTS
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Reported in Exhibits 475, 476, and 477 is an analysis of challenges and exclusions by the party engaging the nancial expert Our analysis of the data shows:
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Of the 165 nancial expert challenges identi ed, 119 (or 721 percent) were engaged by the
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plaintiff (See Exhibit 475) Thus, it is more likely that a nancial expert will be challenged when engaged by the plaintiff than the defendant
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19 The rate at which non nancial experts have been excluded, once challenged, increased slightly in 2001 and then declined in 2002 However, the rate at which non nancial experts have been excluded did not decline to the same extent in 2002 as compared to the gures for nancial experts 20 Analysis of future exclusions will provide insights as to whether the exclusion rate has reached its steady state or equilibrium level While not part of this study, the case lings mix could also impact the exclusion rate of nancial experts over time 21 In whole or in part 22 Based on a reading of the published opinions reviewed, reasons for the exclusion of nancial experts were categorized as relating to relevance issues, reliability issues, and/or quali cation issues A particular expert may have been excluded for more than one reason
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47 10 Number of Challenges Partial Exclusions Complete Exclusions Total Number of Exclusions Exclusions as a Percent of Challenges 55 195 250 7 26 33 23 64 87 30 90 120 545% 462% 480% 44 245 289 5 28 33 13 91 104 18 119 137 409% 486% 474% 66 290 356 7 24 31 13 103 116 20 127 147 303% 438% 413%
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