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The Kumho Tire case in 1999 clari ed that the nonexclusive Daubert criteria were also applicable to nancial experts such as CPAs, nancial analysts, economists, and statisticians, among others, in federal cases Consequently, nancial expert witnesses must be aware of the criteria being used to judge the admissibility of their work and opinions Since Kumho Tire, there has been a particular focus on how courts have applied the Daubert criteria to nancial experts especially since nancial experts are often used in the liability aspects of cases involving accounting and auditing issues and are used for damage quanti cation and related economic causation issues

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In this chapter we present our ndings from an analysis of published opinions of federal and state cases relating to challenges and exclusions of nancial expert witnesses over the 2000 2002 time period (ie, post-Kumho Tire) It is important to note that our search criteria included published opinions that referenced the Kumho Tire case decision explicitly which we used as a primary indicator of matters likely to involve challenges to nonscienti c experts such as CPAs, nancial analysts, economists, and statisticians (See Exhibit 471)8 Our sample included 895 challenges identi ed through published opinions meeting these criteria9 Financial experts were named in 165 of these 895 challenges, with 68 nancial experts being excluded either in whole or in part10 Several interesting conclusions can be drawn from the opinions reviewed, including the following:

Sexual desire is not a single phenomenon Anyone can say he is experiencing sexual desire for several reasons that do not correspond necessarily to the physiology of desire In this respect Levine has suggested an interesting division; according to his view it

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challenges to expert witnesses in general11 This number increased to 289 in 2001 and 356 in 2002 This trend is to be expected The exclusion of a litigant s expert is often devastating to that party s case Hence, challenging the admissibility of an expert s opinion is an increasingly utilized weapon in the arsenal of opposing counsel Once challenged, the rate at which nancial experts are excluded in whole or in part is decreasing Based on our sample of cases, 220 percent of the challenges in 2000 involved nancial expert witnesses The corresponding gures in 2001 and 2002 were 152 percent and 185 percent, respectively Hence, the relative proportion of challenges between nancial and non nancial expert witnesses has not appreciably changed between 2000 and 200212 Interestingly, however, the percentage of nancial experts excluded in whole or in part (once challenged) over this same time period declined from 545 percent to 409 percent to 303 percent While at rst this result may appear paradoxical, we believe it is the natural result of the increased emphasis on challenging the admissibility of the opposing nancial expert s opinions Two forces are creating this result To the extent a Daubert challenge is a strategy increasingly utilized by opposing counsel, the quality of challenges and the likelihood of exclusion may not be as high at the margin when increasing numbers of challenges are made13 In addition, to the extent it is likely a nancial expert has to withstand both a

Although broader search criteria would identify additional cases in federal and state jurisdictions, the expert challenges identi ed using the stated search criteria provided interesting and meaningful insights into certain trends regarding challenges to nancial expert witness testimony since Kumho Tire 9 We conducted research on cases citing Kumho Tire (526 US 137) in the Lexis Nexis federal and state court cases database 10 Some identi ed published opinions addressed the proposed testimony of more than one expert 11 Using the Kumho Tire search criteria previously described 12 The purpose of this chapter is to identify and discuss certain observations and trends relating to expert witness challenges and exclusions We have not analyzed whether statistically signi cant differences exist between certain percentages we report 13 Restated, in the aggregate, it is likely there are diminishing returns to Daubert challenges

is clinically useful to think of desire as consisting of drive (biologic), motive (individual and relationship psychology), and wish (cultural) components [11] The drive component of desire is what we could expect to be explained (some day) by the neurochemical mechanisms in the brain The motivational component of desire might be a result of the interaction of the couple, for instance: I want to have sex with her, otherwise she will leave And the cultural component of desire can be best represented by what is considered a highly desirable partner in a culture, with whom the man needs to have desire in order to conform to the cultural demand of a true man Both in clinical practice and in the general surveys that explore the level of sexual desire the three components are always interwoven

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