A 1996 Precedent Looms Large
Expert Testimony Under the Microscope
During a pointed exchange, U.S. Circuit Judge Emil J. Bove quoted from a 1996 Third Circuit decision that reversed summary judgment for Unisys Corp. in a pension mismanagement case. In that ruling, expert testimony was found to raise a genuine dispute over fiduciary process.
“That language,” Bove told Quest’s attorney, Melissa D. Hill of Morgan Lewis & Bockius LLP, “lands pretty hard in this case,” inviting her to explain why it should not control the outcome here.
Hill argued the Unisys case differed because the expert opinions there were supported by stronger record evidence. Judge Bove pushed back, asking whether such weaknesses should instead be tested through cross-examination at trial.
Should a Jury Weigh the Policy Question?
U.S. Circuit Judge David J. Porter also pressed Quest’s counsel on why the dispute over adherence to the investment policy statement should not go before a jury, even if compliance with the policy was not strictly mandatory.
“I get it, it’s not mandatory,” Porter said. “But why wouldn’t that be a material fact for a jury to weigh — failure to follow the committee’s own investment policy statement?”
Porter further questioned attorneys on changes Quest made to its investment policy statement after litigation began, probing whether those revisions carried legal significance.
