For those contemplating the introduction of an adverse expert’s deposition testimony, District of Delaware Judge Sue L. Robinson has issued a roadmap. In its memorandum order, the Court adopted, by reference to another Delaware court, the following theory of expert testimony:
[T]he fact that a party has control over whether or not to introduce the expert and [the] testimony supported by him, and the fact that a party has the right to choose the expert in the first place, certainly adds credence to the theory that an agency relationship exists between the expert and his supporting party. Given that dynamic, it is unclear why a statement made by an expert in the course of his testifying on behalf of a party, which is adverse to that party, should not be admissible against that party.
Although as a result “there are no absolute evidentiary obstacles” to the use of these expert depositions at trial, the Court cautioned that other barriers remain. As enumerated in the decision, included among these are a variety of considerations under FRE 403 and 802.