So you are an attorney scheduled to go to trial and you are utilizing the services of an expert witness that you carefully selected and prepared. After weeks (or months) of research and preparation, you and your expert craft a strategy to prove your case theory and hopefully reach a favorable verdict. In fact, your entire case may hinge on this one expert’s testimony. But then, right before trial, opposing counsel files a motion to preclude your expert from testifying. Now what?
Known as a Daubert challenge, this type of motion in limine seeks to exclude an expert’s testimony on the basis that it is not reliable or relevant under Rule 702 of the Federal Rules of Evidence. The challenge is based on the seminal United States Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which established the governing standard of expert testimony admissibility in federal courts and the majority of state jurisdictions. Once a Daubert motion is filed, the party seeking to admit the testimony bears the burden of proof and must prove by a preponderance of the evidence that the expert possesses the requisite level of expertise and the testimony is based on reliable methodologies. A hearing occurs before a judge and prior to trial. If the judge finds that an expert does not rise to the level of expertise required under Daubert, then that testimony will be excluded from being admitted at trial.
Clearly, an unfavorable Daubert hearing can have disastrous consequences, particularly if the expert’s testimony was the crux of the case. Especially when dealing with complex or scientific materials that the average juror would not understand, an expert is indispensable. In addition, it would be catastrophic to exclude an expert witness after hours upon hours have already been expended preparing for trial. With that in mind, here are some tips to prepare for each stage of a Daubert challenge and to ensure that your expert’s testimony is admitted at trial.
A Preemptive Defense Strategy: Know Your Daubert Factors!
The best preparation for a Daubert challenge occurs way before the opposing party even knows the identity of your expert. Ideally, the enumerated factors that a court may consider in evaluating the testimony’s admissibility should be in the back of your mind before you even sign your expert’s retainer agreement.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court enumerated a non-exhaustive list of factors to be considered in determining the whether an expert’s testimony is sufficiently reliable to be admitted. The factors include:
(1) whether the expert’s technique or theory can be or has been tested—that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied and the existence and maintenance of standards and controls; and (4) whether the technique or theory has been generally accepted in the scientific community.
It is important to note that Daubert was decided in response to an older standard, established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which held that an expert’s testimony must be based on a technique that is “generally accepted” in the scientific community in order to be admissible. The holding in Daubert is considered a more flexible standard, as general acceptance within the scientific community is not a mandatory requirement but rather one of several factors that may be considered. Thus, there is no one concrete way to satisfy all of these factors, as each expert and area of expertise is different.
In addition, Daubert focuses on the reliability of the expert’s methods, not the conclusions. Therefore, as codified in Rule 702, the main question is whether the expert based its conclusion on sufficient facts or data and that the conclusion is the product of reliable principles and methods reliably applied to the facts of the case. This main question should always be kept in mind throughout the selection process of an expert.
Craft a Strong Written Opposition to the Motion
Although Daubert motions can be raised at any point, they are often made prior to the commencement of trial, with the arguably strongest and most researched motions being in written form. Like any persuasive opposition, your response should be tailored to opposing counsel’s points. Not all Daubert motions are blanket requests for exclusion, but rather, may take issue with only one or some of the expert’s testimony. First, opposing counsel may challenge the relevancy of your expert under Rule 702. In which case, the opposition should argue that the expert’s knowledge is needed to help the trier of fact to understand the evidence or to determine a fact in issue.
The opposing party’s allegations against your expert will largely be based on the expert’s report provided prior to trial. Under Rule 26 of the Federal Rules of Civil Procedure, expert witnesses must disclose to the opposing party a report previewing the expert’s proposed testimony. The report must contain “all opinions the witness will express and the basis and reasons for them.” Opposing counsel may allege that the methods used by the expert are not reliable, or may take issue with certain aspects of the testimony. Particularly in cases where the expert is submitting a slew of complex, scientific opinions, it is helpful to concentrate on the exact piece of the report that opposing counsel finds questionable. The benefits are twofold – it narrows down the focus to the real issues without inundating the judge with an “information dump” of undisputed matters.
Prepare for the Hearing with the Opposing Party’s Objections in Mind
If a Daubert motion results in an actual hearing, the preparation should be as finely tuned as the written opposition. Your expert will need to testify, but unlike at trial, the goal is not to convince the judge of the expert’s findings. Rather, the focus is on relevancy and reliability. Like the written opposition, for the sake of clarity and judicial efficiency, it is important to prepare your arguments in response to opposing counsel’s own specific objections. During the hearing, your expert should indicate the specific subject matter he plans to testify to at trial, highlighting the opinion that is being challenged by opposing counsel. The expert should then testify as to the basis of his opinion, including the facts and data he relied upon, and the scientific principles, methods, or techniques that he used to reach said opinion.
The evidence needed to establish reliability is largely dependent upon opposing counsel’s claims. For example, if it is alleged that the expert’s theory has not been adequately subjected to peer review, a publication related to the expert’s findings would be very useful. Likewise, if the expert’s rate of error is questioned, a statistical analysis breaking down the error rate and controls of the experiment can rebut such allegations.
Know Your Audience: Be Mindful of the Judge’s History
It is a known fact that judges do not appreciate frivolous motions, and Daubert challenges are no exception. However, many attorneys still file such motions more often than they should. As a tactical strategy, opposing counsel may wait until right before the trial date to file a Daubert motion, but doing so will most likely incense the judge. While there is nothing that can be done to prevent an opposing party’s missteps, it can be a great opportunity to differentiate yourself from your adversary. The Daubert decision is over twenty years old, which means that some judges have over two decades worth of Daubert rulings in their judicial history. By researching the judge’s past rulings, citing them in your written opposition, and catering your testimony and evidence at the hearing around the judge’s own holdings, you are showing the judge deference as well as saving time litigating issues that the court has handled long ago. In contrast, if the opposing party chooses to challenge scientific theories that the court has clearly admitted time and time again, it only hurts the validity of the motion.
On the other hand, the inherent nature of expert testimony is confusing, as it consists of complex or scientific ideas that are not typically known by the general public. Therefore, it is likely that the judge may be as unfamiliar with the expert’s area of expertise as a jury would be. With that in mind, it is important to present all written materials, testimony, and exhibits in a comprehensive and concise manner.
Overall, throughout the entire Daubert process, it is important to remember the goal: establish the relevancy and reliability of your expert’s testimony.