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Can an expert be forced to give expert testimony with the use of a subpeona? Seeing as they are putting there reputation on the line it would not strike me as unfair to force a professional into forensic testimony?

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  • It's not constitutional question, but US in general, fixed the tags. Just asked because the rules for experts are vastly different in other countries.
    – Trish
    Feb 16, 2022 at 18:17

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Yes and no, that is, the courts have extensive powers to compel testimony, but there are rules about doing so. This article addresses the question of expert testimony. Suppose you want an expert to testify, then Rule 26(a)(2)(B) applies, requiring disclosure of the information to be disclosed, along with a written report. It could be nearly impossible to provide the required information without the cooperation of the expert. Furthermore, under Rule 45(d)(3)(B)(ii), a subpoena can be quashed, which the article summarizes in terms of the objections that

Testimony about an expert’s findings may impact or limit an expert’s ability to conduct research

Testimony about an expert’s work may be unethical, if the work is not completed, peer reviewed, or otherwise in a “publishable” format

The subpoena and resultant testimony could put the expert at a competitive disadvantage

Work required to adequately prepare for such testimony is overly burdensome

The subpoena and subsequent testimony may put the unwilling expert in a controversial or otherwise uncomfortable position

In a specific instance of subpoenaing an involuntary witness, the court in In Re: World Trade Center Lower Manhattan Disaster Site Litigation addressed a motion to compel expert testimony. The opinion lays out various powers of the court to compel a "non-retained" expert witness, including the "substantial need for the testimony or material that cannot be otherwise met without undue hardship". There is a complex weighing of factors here, which is resolved at the finding that "Plaintiffs have failed to show that the Non-Retained Experts' testimony is unique" so the petition to compel testimony was denied, but the affiliated research center was compelled to disclose the underlying data.

So it depends on the circumstances, see Kaufman v. Edelstein, 539 F.2d 811.

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