![]() ![]() The witnesses may also use synonyms for the words “trade” and “secret.”įinally, when we first came across Xue, we compared the list of cases Xue cited to those cited in Bexis’ Book, §10.06, fn 1. Therefore:Īs an alternative to “trade secret” or “secret,” the witnesses may testify that the information was “confidential” or “proprietary,” about any steps taken to protect the confidentiality of the information, and about industry customs and practices. Thus, the expert witnesses may not testify using the term “trade secret” because doing so would usurp the District Court’s pivotal role in explaining the law to the jury. Ultimately, the jury must decide whether the Government has proved beyond a reasonable doubt that the documents in issue contain “trade secrets,” after carefully applying the facts they find to the law. ![]() 1985) (prohibiting expert testimony on statutory term “as effective”).īecause “the term ‘trade secret’ is a term of art with specialized legal meaning,” it was properly the subject of a jury instruction from the court, not opinions from the parties’ expert witnesses. ![]() 2002) (prohibiting expert testimony on FDCA term “materially misleading”) Torres v. Other appellate decisions cited in Xue are: United States v. Each courtroom comes equipped with a “legal expert,” called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards. testimony as to the applicable legal standard was plainly erroneous, thus demonstrating the danger in allowing experts to testify as to their understanding of the law. 1997), which determined that the term “as effective” was not subject to an expert opinion because it was a legal “term of art with a meaning ‘separate’ and ‘distinct’ from the vernacular.” Id. Washington Metropolitan Area Transit Authority, 112 F.3d 1207, 1212 (D.C. Turning to other circuits, Xue began, id., with Bexis’ favorite precedent for precluding expert testimony on conclusions of law: Burkhart v. Peoples Benefit Life Insurance Co., 2005 WL 730688, at *4 (E.D. 2006) (expert could not opine that an insurer acted in “bad faith”) McCrink v. 2007) (precluding expert witness from testifying that a product was “defective,” “unreasonably dangerous,” or was the “proximate cause” of injury) Gallatin Fuels, Inc. July 3, 2019) (expert may not opine about “proximate cause”) Perez v. Numerous district courts in the Third Circuit have reached similar results. 2012), prohibited an expert from opining on what constituted “exclusive control,” “dangerous condition,” “substantial cause,” and “negligence.” Id. Thus, “courts commonly exclude ‘legal terms of art’ from expert testimony.” Id. (quoting Berckeley Investment Group, Ltd. Rather, “‘an expert witness is prohibited from rendering a legal opinion.’” Id. 704(a) allows an expert witness to opine on an “ultimate issue,” nothing in the Federal Rules allows experts to opine on the law. “One of the ‘ultimate issues’ in this case whether the alleged misappropriated information falls within the statutory definition of ‘trade secret.’” Id. The court agreed with the defendant, and wrote an unusually thorough explanation of why this testimony was being excluded. The prosecution offered up perfectly well-qualified expert witnesses who proposed to testify about a variety of things, but the one that matters for present purposes is that they intended to characterize the material at issue as “trade secrets.” The defendant opposed admission of that testimony on the ground that “trade secret” – like “adulterated”/”misbranded” in our prior post – was a legal term of art, and thus improper as a basis for an expert opinion. April 6, 2022), was being prosecuted for “conspiracy to steal trade secrets.” It doesn’t matter what the secrets were or who was involved. It’s not a tort case – it’s not even a civil case – so it demonstrates how widespread the problem legalistic “expert” witnesses extends, and also how wide-ranging relevant caselaw can be. ![]() But since we recently ran across an unusually favorable new case on this subject, we thought we’d address it again. Not too long ago we researched precedent that forbade persons claiming to be “FDA experts” from opining that products are “adulterated” or “misbranded.” In that post, we mentioned that this research is a subset of a “general” precedent “precluding expert opinions on questions of law,” which we didn’t get into because Bexis’ book addressed it. ![]()
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