ABI Committee News: Bankruptcy Litigation Committee
"Citadel Broadcasting: Gatekeeping Expert Testimony in Bankruptcy Court"
The Supreme Court’s seminal opinion in Daubert v. Merrell Dow Pharms. established the basic precept that a federal court should serve as a “gatekeeper” to exclude expert testimony when such testimony would not assist the trier of fact or help determine a factual issue. Of course, Daubert and its progeny apply in the bankruptcy courts, but because evidentiary hearings in the bankruptcy courts are almost always held with the court serving as trier of fact, the rationale for excluding expert testimony is not as compelling as when a jury serves as fact-finder. Accordingly, bankruptcy judges are often amenable to allowing expert testimony to be presented in the first instance, knowing that the court has the opportunity and authority to evaluate such testimony and reject it should the expert be found to lack credibility or express suspect opinions.