Soccer and Daubert

In my ongoing chronicle of sports-related litigation, https://www.videntpartners.com/blog/sports-law, I have previously had occasion to cite the work of Michael McCann, Sports Illustrated’s legal analyst and the founding director of the University of New Hampshire Law School’s Sports and Entertainment Law Institute.  Professor McCann has outdone himself in a just-posted article, “U.S. Women’s National Team Challenges Use of U.S. Soccer’s Expert Witnesses in Gender Discrimination Case,” https://www.si.com/soccer/2020/03/17/uswnt-us-soccer-gender-discrimination-lawsuit-expert-witnesses.  This is an extensive analysis of the plaintiffs’ motion to disqualify three of U.S. Soccer’s expert witnesses under the principles announced in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).  Those principles, which famously explicate the trial judge’s role in applying Federal Rule of Evidence 702, 703 and 403, rapidly came to dominate challenges to expert testimony in virtually all state courts as well as the federal courts – so completely that the very name of the case became a verb, as in “The other side is trying to Daubert my expert.”  Professor McCann’s article identifies the three challenged experts – a labor and employment lawyer who is a partner at Morgan Lewis and a former chair of the National Labor Relations Board; a forensic accountant with decades of litigation experience; and a Columbia Law School professor with expertise in the law and economics of employment discrimination – and reviews the arguments of the parties for an against the admissibility of their testimony under the Daubert standards. 

We at Vident Partners are extremely careful to make sure that every expert we refer is qualified to render opinions on the subject matter of the case in question.  In our 15 years in business, to our knowledge only one of our experts has ever been disqualified as a result of a Daubert challenge – and that occurred in 2008 when an expert inadvertently misrepresented his technical expertise to us and to our attorney-client.  As it happens, the plaintiffs in the U.S. Soccer case do not dispute the general qualifications of the three experts; rather, their arguments are based on considerations of relevance, the risk of confusing or misleading the jury, and (in the case of the labor lawyer) the inadmissibility of opinion testimony on a pure question of law.  (We’ve blogged on that last point – see https://www.videntpartners.com/blog/2019/expert-testimony-legal-issues-not-admissible.)  Disqualifications on those grounds are, of course, beyond our control.  What we can and do guarantee is that every expert you engage through us is highly qualified; well credentialed; and ready, willing and able to provide admissible expert opinion testimony in your case.  Give us a call the next time you need help finding an expert – we promise you’ll be glad you did.

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