Sound Advice: The Role of Neutral Experts

Jeffrey Klenk and Dr. Michael McDonald recently joined the American Bar Association Litigation Section Class Actions & Derivative Suits Committee’s Sound Advice podcast. They delve into the nuanced world of neutral experts, particularly in the context of class certification matters. They begin by explaining what a neutral expert is according to the Federal Rules of Evidence (FRE), highlighting key distinctions between a party’s expert (whether for the defendant or plaintiff) and a court-appointed neutral expert.

Listeners will gain an understanding of why a court might appoint a neutral expert, especially in cases involving complex technical issues debated by each party’s experts. This appointment can help streamline the process and minimize prolonged disputes.

They also explore scenarios where a party might be motivated to petition—or discouraged from petitioning—the court for a neutral expert under FRE 706. They discuss unexpected consequences of such petitions, including how a neutral expert might introduce new arguments into the case and affect the scope of the issues being discussed. A broader scope can impose additional burdens on the party’s experts and complicate the case further.