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39 Rutgers L. Rev. 111 (1986-1987)
The Admissibility of Prior Testimony of Out-of-Court Experts

handle is hein.journals/rutlr39 and id is 119 raw text is: THE ADMISSIBILITY OF PRIOR TESTIMONY OF OUT-OF-COURT EXPERTS Timothy Wilton* Richard P. Campbell** I. INTRODUCTION Scientific experts who become involved in litigation typically specialize in a limited area of subject matter and thus participate in the same types of cases, often involving the same or similar parties, on a repeated basis. For example, one engineer may specialize in tire defects and testify only in personal injury product liability claims against tire manufacturers, while another may focus on automobile design and manufacture, appear- ing regularly in suits against automobile manufacturers.1 Attorneys frequently specialize as well, and their common involvement with certain cases, together with opportunities to share information with other attorneys on specific types of cases,2 often results in the attorneys' obtaining transcripts of previous testimony from other cases by experts, either in earlier depositions or from a previous trial, which might be relevant to cases currently in litigation. Attorneys representing either side in a case which involves allegations of defective design of some product component may contact other attorneys who have previously litigated cases involving that component, and may obtain the deposition and trial transcripts of expert testimony from those cases. An expert may have testified that the component is defectively designed and can result in failure of the same type involved in the subsequent case, or that the component is not defectively designed. The attorneys in the subsequent case may wish to introduce that testimony in order to bolster their own expert's opinion, or even as the sole * Professor of Law, Suffolk University Law School. B.A. 1968,J.D. 1971, LL.M. 1977, Harvard University. ** Campbell and Associates, Professional Corporation. B.A. 1970, University of Massachusetts; J.D. 1974, Boston College. The authors are grateful to Professor Joseph Glannon for his helpful comments on a draft of this article. 1I. The analysis in this article applies to the prior testimony of experts in any type of case. The examples used are drawn from product liability cases because that is the area of litigation with which the authors are most familiar. 2. Lawyers frequently share information with other lawyers who represent the same side in specialized areas of litigation. Lawyers representing corporate or institutional clients usually form cooperative networks with other lawyers representing that client, or through trade associations or a liability insurance carrier. Lawyers representing individuals frequently form networks as well, for example, the Association of Trial Lawyers of America, from which members can obtain pleadings and briefs and the names of other lawyers handling particular types of cases.

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