Ann: Phosphagenics Mylan Arbitration Hearing Concluded, page-153

Kens

I’ve done some reading around your questions and will have a go at answering them, based on what I've read. Just follow the links provided to read further

*Are these experts part of the Corrs Chamberlain Westgarth organisation or do Corrs appoint these people/organisations as subcontractors ?

I am almost certain that these experts would not come from within the Corrs organisation.

Questioning independence can be used to discredit the integrity/credibility of the testimony of the opposing party’s chosen experts. Expert witnesses will be required to declare if they have any existing or previous association with either the party they are providing testimony for, or its legal team.

There are business advisory firms which provide suitable expert witnesses as part of their services – FTI Consulting, for example, is one example of a top-ranked firm which operates globally, including in Australia. There are also companies which act as middlemen, connecting legal teams with the right expert witness for a specific case. There is even an annually-compiled list that nominates the world’s most highly regarded expert witnesses in arbitration.

I am almost certain that Mylan has used FTI Consulting for its expert witnesses in this case. Unfortunately, I have no idea which expert witnesses Corrs have used on behalf of POH.

*How many experts are appointed and how is consensus on damages claims agreed amongst themselves and Corrs?

Each party may appoint one or more expert witnesses, but more than one is likely in a complex case.

….it is still common in international arbitrations to have multiple experts. Multiple experts may be engaged early in a proceeding in order to solicit multiple views on a complex subject, because the experts have different backgrounds or areas of expertise, or because the scope of the dispute is such that the relevant analysis or calculations are beyond the resources of any single expert. Multiple experts may be engaged as a team or as individuals and may work cooperatively or independently as the project requires.

In addition, the arbitral tribunal can appoint its own experts to provide evidence on particular aspects of the dispute, or to assist the tribunal in understanding the issues addressed by party-appointed experts. These experts are generally viewed as independent, and they are chosen by and instructed by the arbitral tribunal. They may be asked to submit a written report, to which the parties are generally given the right to reply (often via their own party-appointed experts). They are also usually subject to cross-examination by the lawyers for each party.

*How are disagreements amongst experts resolved?

Various procedural tools are used.

One is requiring the experts to meet and confer in regard to their respective reports. The purpose of this is to determine in a joint report where the differences between their respective positions lie and where they have points of agreement.

Another approach is to require the party-appointed experts to appear during the hearing to testify jointly. Many tribunals find it useful to observe and question experts at the same time in the environment of an oral hearing.

Another method is for a tribunal to require the experts to meet and confer as a precursor to the appointment of an expert by the tribunal. By requiring the experts work towards narrowing the issues between them, the tribunal-appointed expert is then able to deal discreetly with only the most relevant points in contention.


*Do these experts have commercial business experience or pharma industry industry experience and not simply a legal background?

Expert witnesses should have a background that is relevant to the subject of dispute. There are no limitations on which issues a party may submit expert testimony on. But the tribunal is also free to ignore an expert’s report if it is felt that it is immaterial to the final award.

Below is the background of the two “subject matter experts” who I believe to have been used by Mylan in this case:

Brian Napper
Mr. Napper’s background is in accounting, finance and economics, and he has a specific, focused understanding of those issues integral to the valuation and management of intellectual property.

Leigha Beckman
Client services professional with 3 years of experience in business advisory, damages analysis, valuation and complex disputes. Applies knowledge in accounting, finance, legal and regulatory frameworks to assess value and/or damages in complex business contexts.



*Have these experts had prior arbitration experience?

Almost certainly, they will have. Highly regarded expert witnesses will likely have provided testimony in multiple arbitrations.