Expert Article Library

Was Court-Appointed Expert Actually an Expert?

Case Name: FTC v. Enforma Natural Prods. (Click here for the full text of the case)

Court: U.S. Court of Appeals for the 9th Circuit

Date: April 1, 2004

Expert: Science. Dr. Heber

Issues: Whether the district court properly granted two preliminary injunctions that restricted the sale and marketing of appellants’ diet supplement products.

Summary of case: Two preliminary injunctions, issued by the district court, resulted in restriction of the sale and marketing of appellants’ diet supplement products. The injunctions were related to contempt actions filed by the Federal Trade Commission alleging false and unsubstantiated claims by appellants.

Role of the expert: Heber was appointed by the court "to evaluate matters related to the science at issue, and to advise the Court with respect to his opinions related to the science.” Heber was never placed under oath or called to testify at trial and he did not submit an expert report or any other independent evidence on the record.

Challenges to the Expert's testimony: Appellants argued that the district court erroneously deprived them of the ability to depose or cross-examine the court-appointed expert, Dr. Heber, or to view a report prepared by Dr. Heber, as required by Federal Rule of Evidence 706. Appellants also challenged the district court’s interpretation of Heber’s opinions, but because Heber’s opinions and conclusions were not recorded they cannot be reviewed. The appellate court vacated both injunctions, based on evidence from the record that the district court may have improperly relied on Dr. Heber’s testimony, and remanded both appeals. As to the first injunction, the court remanded for proper findings of fact and for clarification of the status and role of the court-appointed expert. As to the second injunction, the court remanded with instructions to review the parties' stipulated proposed preliminary injunction, to identify the district court's objections, and to provide the parties an opportunity to respond.

Summary prepared by W. McLennan, Student, U.C. Hastings College of the Law