Professor Imwinkelried Interviewed by Bloomberg BNA

Bruce Kaufman, Senior Legal Editor for Bloomberg BNA, recently interviewed Professor Edward Imwinkelried about the findings of a recently released study by PricewaterhouseCoopers on financial expert testimony. 

The study analyzed more than 8,000 judicial decisions, rendered between 2000 and 2015, ruling on the admissibility of financial expert testimony.  The study reported a number of findings, including the conclusions that the highest exclusion rates were in intellectual property and product liability cases and that courts excluded testimony by accountants more frequently than testimony by economists. Kaufman asked Professor Imwinkelried whether the major findings in the study were surprising or questionable.

Professor Imwinkelried explained that most of the findings were expectable and readily explicable.  For example, Professor Imwinkelried pointed out that intellectual property and product liability cases often involve new products.  Hence, the damages testimony in such cases is more likely to be speculative and vulnerable to an objection under DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579 (1993).  

In addition, he noted that prior to their elevation to the bench, most judges work as practicing attorneys.  As a former litigator or transactional attorney, the judge has probably had extensive contact with accountants.  The judge is less likely to have had prior occasion to work with economists.  Consequently, the judge is more likely to feel competent to second-guess an accountant's proposed testimony.

Professor Imwinkelried's interview was initially published in the July 22, 2016 issue of BNA'S Patent, Trademark & Copyright Journal.  The interview will later appear in BNA publications relating to antitrust law, class actions, product liability litigation, and corporation law and securities.