As my colleague recently discussed, humanizing a corporation is a critical element of any products liability defense strategy. After all, when an individual plaintiff is pitted against a corporate defendant in the courtroom, getting a jury to sympathize with the corporation is often an uphill battle. But, as a Delaware Chancery Court ruling clarified last week, defense counsel can only go so far in portraying a company as a human being, specifically when it comes to expert testimony.
The court’s ruling that expert witnesses must possess “a body and brain” to render testimony may be a clever way of prohibiting parties from designating corporate entities as witnesses, but it also serves as a good reminder of the key challenges litigators often face in presenting experts to testify. Namely, that witnesses be able to testify from their own personal knowledge, take an oath, hear from other witnesses, and – perhaps most critically – undergo cross-examination.
By way of background, Dole Food Co. Inc. had sought to name financial services firm Stifel Nicolaus & Co. as its expert witness in a shareholder suit brought against Dole stemming from claims related to the pineapple producer’s $1.6 billion take-private deal. Although it is not unusual for parties to present corporate entities as experts, typically they do so in conjunction with naming individual experts – something Dole chose not to do here. In fact, during a deposition, Dole defense counsel objected when Stifel’s managing director identified himself as the author of Dole’s valuation report, saying instead that “‘Stifel is the expert,’” Friday’s opinion noted.
Although the financial services firm produced reports about Dole’s value at the time of the transaction at issue, the court ruled that expert witnesses must be biological persons. “[The managing director] has a body and a brain,” Vice Chancellor J. Travis Laster wrote. “Assuming he is otherwise qualified, he can serve as an expert witness. Stifel has neither and cannot.”
Plaintiffs’ counsel had challenged Dole’s designation of Stifel as its expert on the grounds that a corporate entity could purport to rely on the collective wisdom of its employees and agents, whereas individuals can rely only on their own limited knowledge and experience.
One can certainly imagine how it would be difficult for a jury to evaluate the credibility of such “collective wisdom.” But more importantly, designating a corporation as a witness would enable a party to circumvent a crucial component of expert testimony – cross-examination. In many cases, less-than-stellar experts can survive Daubert challenges on the basis that opposing counsel will have the opportunity to question their qualifications and opinions in front of a jury, thus empowering the jury to give the testimony whatever weight they deem appropriate. Without the cross-exam safeguard in place, it is unclear how the court could prevent less-than-scientific testimony from unduly swaying or confusing a jury.
However, the Dole court’s ruling, while instructive, would perhaps have had more teeth had the vice chancellor not simply substituted the managing director for the investment bank as Dole’s expert witness. This is particularly so given that the managing director authored the company valuation reports and will presumably be able to render nearly identical opinions as Stifel would have without sacrificing substance or credibility. Indeed, given my colleague’s reasoning as to why juries prefer humans over companies, the director himself may have even more success in testifying than Stifel would have.
Nevertheless, the court’s opinion is significant from a slightly different angle in that it pushes back, however gently, against the notion of “corporate personhood” that has taken hold after landmark decisions, such as the U.S. Supreme Court’s Citizens United and Hobby Lobby, expanded the political rights of corporations. Thus, while it could remain uncontroversial that a testifying expert witness must possess both “body and brain,” the Delaware Chancery Court’s ruling may reignite a conversation about where exactly we draw the line in humanizing the corporation.