Daubert: 10 Years Later

This is the first of a two-part article. Part two will appear next month.

Product liability practitioners must be intimately familiar with the strategy and tactics of challenging expert testimony under Rule 702, Fed. R. Evid., and the so-called Daubert trilogy of cases. Nearly 10 years ago, the United States Supreme Court, in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), vastly changed the road map for the admission of expert testimony. A body of case law has grown since that decision, providing numerous avenues to challenge admission of expert testimony. Because product liability cases usually rely on expert testimony, Daubert challenges are particularly important in them.

A recent study confirms the importance of Daubert in product liability cases. The Rand Institute for Civil Justice studied civil case challenges to expert testimony and found strong evidence that the proportion of expert evidence excluded in product liability cases markedly increased after Daubert. See Dixon L, Gill B: Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision (Santa Monica, CA: Rand Corp.; 2002) and LJN's Product Liability Law & Strategy, February 2003, page 8, 'Online.' Product liability practitioners should therefore assemble a record through discovery in each federal case that will support Daubert challenges. As that record is assembled, strategic decisions can be made on whether and when to bring Daubert challenges.

The first of this two-part article explores the development of the standards for admission of expert testimony under Daubert, and discusses strategies and tactics for dealing with them. Part two addresses the tactics to use while deposing an expert, briefing a Daubert motion, and having a hearing on the motion.

Development of the Daubert Standard

The Daubert opinion began an evolution in federal law that culminated with the amendment of Rule 702, Fed. R. Evid. Federal trial judges were established as 'gatekeepers' who must thoroughly examine the reliability and relevance of expert testimony prior to admission. The Supreme Court stated that the reliability and relevance of an expert's methodology, rather than his or her conclusions, must be reviewed. The opinion clarified the trial judge's duty by identifying five factors that may be used to review 'scientific' methodology. These factors are the starting point for a Daubert challenge in most product liability cases.

The Court revisited expert testimony 4 years later in General Electric Co. v. Joiner, 522 U.S. 136 (1997), which held that Daubert decisions should be reviewed only on appeal for abuse of discretion. The opinion also broadened the Daubert inquiry. The Court found that there was no bright-line distinction between methodology and conclusions, so a trial judge may exclude expert testimony if there is too great a gap between a conclusion and its supporting data.

The final case in the Daubert trilogy, Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), applied Daubert to all types of expert testimony, including non-scientific opinions. Kumho stated that the Daubert inquiry was flexible, and the trial court must determine the factors reviewed. The court may review factors other than the five identified in Daubert.

The consequence of the Daubert trilogy is that the relevance and reliability of any expert's testimony may be challenged on any grounds the trial court in its discretion believes proper. Rule 702, Fed. R. Evid., was amended effective December 1, 2000, to codify the Daubert trilogy. The Rule specifies the following three broad, generic areas for gate-keeping inquiry: whether '1) the testimony is based upon sufficient facts or data, 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case.' Courts continue to rely on the Daubert trilogy to interpret Rule 702. Thus, the specific factors identified in those cases to assess relevance and reliability, as well as the flexibility of that inquiry, remain vital.

Daubert Strategy

A Daubert challenge may be made at any time prior to or during trial. Because a typical challenge is complex, most are initially made prior to trial through a motion in limine or motion for summary judgment. If the challenge is not made well in advance of trial, the likelihood of success will be greatly diminished in many courts. Often, the ruling on the motion will be deferred in bench-tried cases until during the trial, when the court has a greater knowledge of the case; it will most likely receive a pretrial ruling in a jury-tried case.

A Daubert strategy requires determining whether the reasonably achievable goals of a pretrial Daubert challenge outweigh the likely costs and risks. The most obvious potential goal of a Daubert challenge is the striking of the opposition's expert prior to trial. If the expert's testimony is needed to establish liability ' such as plaintiff's product defect expert ' summary judgment may be granted defendant. Likewise, a defendant's case may be so weakened that settlement is the only reasonable alternative. A complete victory through motion practice is not, however, the only potential strategic goal of a Daubert challenge.

Another goal may be educating the court concerning the product, technology, or science involved, with the hope of having the expert testimony excluded at trial. The court may deny a Daubert motion but later exclude testimony based on the record developed at trial, which the judge will better understand through education gained from the motion. Even if  the testimony is not excluded, objections at trial may cause the court to limit the testimony to its most reliable points. If settlement is a desired outcome in the case, the goal of a Daubert motion may be maximizing bargaining power, particularly during the pendency of the motion. Another aim of a Daubert motion may be prompting the opposing expert to conduct testing. Although experts will rarely conduct testing after delivering their opinion, it has, on occasion, happened. (Opposing counsel once confided to the author, after a nominal settlement, that the threat of a motion challenging expert testimony had prompted testing that showed a fire could not be ignited in the way plaintiff's expert theorized.)

The primary reasons not to mount a pretrial Daubert challenge are expense and alerting the opposition to potential lines of cross-examination. There is no question that Daubert motions can be time-consuming and expensive. Product liability cases frequently involve complex technical issues that require detailed and lengthy briefing to explain in a Daubert motion. An unsuccessful Daubert motion also will alert opposing counsel to weaknesses in their expert's testimony, which will permit them to prepare the expert for cross-examination. If the Daubert challenge grounds are not strong, it may well be best to save the points that would be made in a Daubert motion for cross-examination.  Another reason to avoid a Daubert challenge is it may invite a reciprocal attack. If both parties' experts are vulnerable, the party with the burden of proof, in particular, should consider carefully before bringing a Daubert motion.

Tactics ' Preparing for the Expert Deposition

The expert's deposition is where most or all of the record to support the Daubert motion will be created. Preparation for the deposition must be painstaking. The Rule 26(a)(2)(B), Fed. R. Civ. P. report, which must contain a 'complete statement of all opinions to be expressed and the basis and reasons therefore,' is the starting point for that preparation. Many reports are inadequate because they are not detailed and complete. If the report is inadequate, counsel is faced with difficult decisions. If counsel believes that the trial judge will strictly enforce the Rule, the expert's deposition could be foregone. Objections could be made at trial to limit the expert's testimony to the report. This author is usually reluctant to use this tactic because trial judges tend to be lenient in their interpretation of expert reports, and explaining the inadequacies of the report may be difficult in the heat of trial. In the alternative, a demand for supplementation of the report may be made. If the response to the demand is not adequate, a motion seeking further supplementation could be filed.

Supplementation may not, however, be the best route. Discovering the expert's full opinion in the deposition may be best because requests for supplementation may cause further thought and work by the opposing expert that will permit him to present stronger testimony. It is advisable not to demand supplementation unless the report is so inadequate that deposition preparation is hampered.

A thorough investigation of the expert's background should be conducted. The Rule 26(a)(2)(B) report must contain identification of trial and deposition testimony for the preceding 4 years, and counsel should obtain and review copies of all testimony disclosed. Helpful admissions are occasionally found from this review, but more often a great deal is learned about the general methodology the expert uses. This knowledge should help in formulating deposition questions. Talking to counsel that previously questioned an opposing expert many times provides information.

Online databases should also be reviewed as a check on the accuracy of the prior testimony disclosure. The expert's name should also be checked in Westlaw or Lexis. Although these inquiries are many times fruitless, they occasionally yield helpful information, eg, a recent search found a Daubert decision disqualifying an opponent's engineering expert, which greatly helped in disqualifying him in the case at hand. Independent research into the expert's background and credentials also should be conducted. Verify that the expert actually has obtained the degrees he claims to have.  If the expert lists a professional organization as a credential, determine from the organization what must be done to obtain membership. Many times, membership involves no more than paying a fee and submitting an application. Production of the expert's complete file also should be sought prior to the deposition, as well as all documents containing data or information on which the expert relies.

Finally, counsel should develop an outline of deposition questions concerning each potential avenue of the Daubert challenge. Because the Daubert inquiry is flexible, counsel must be creative in developing the attack on the reliability and relevance of expert testimony. Every case is different, but the factors identified in the case law are starting points from which the analysis should begin. Creatively applying these starting points to the facts should help counsel develop a roadmap for the expert's deposition.

The conclusion of this article, in the April Issue of this newsletter, addresses the tactics to use while deposing an expert, briefing a Daubert motion, and having a hearing on that motion.

Robert O. Lesley is a partner in the Kansas City, MO, office of Sonnenschein Nath & Rosenthal. He specializes in the defense of product liability cases, and other complex litigation. Lesley is currently national counsel for two consumer products manufacturers. Phone: 816-460-2556.

This is the first of a two-part article. Part two will appear next month.

Product liability practitioners must be intimately familiar with the strategy and tactics of challenging expert testimony under Rule 702, Fed. R. Evid., and the so-called Daubert trilogy of cases. Nearly 10 years ago, the United States Supreme Court, in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), vastly changed the road map for the admission of expert testimony. A body of case law has grown since that decision, providing numerous avenues to challenge admission of expert testimony. Because product liability cases usually rely on expert testimony, Daubert challenges are particularly important in them.

A recent study confirms the importance of Daubert in product liability cases. The Rand Institute for Civil Justice studied civil case challenges to expert testimony and found strong evidence that the proportion of expert evidence excluded in product liability cases markedly increased after Daubert. See Dixon L, Gill B: Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision (Santa Monica, CA: Rand Corp.; 2002) and LJN's Product Liability Law & Strategy, February 2003, page 8, 'Online.' Product liability practitioners should therefore assemble a record through discovery in each federal case that will support Daubert challenges. As that record is assembled, strategic decisions can be made on whether and when to bring Daubert challenges.

The first of this two-part article explores the development of the standards for admission of expert testimony under Daubert, and discusses strategies and tactics for dealing with them. Part two addresses the tactics to use while deposing an expert, briefing a Daubert motion, and having a hearing on the motion.

Development of the Daubert Standard

The Daubert opinion began an evolution in federal law that culminated with the amendment of Rule 702, Fed. R. Evid. Federal trial judges were established as 'gatekeepers' who must thoroughly examine the reliability and relevance of expert testimony prior to admission. The Supreme Court stated that the reliability and relevance of an expert's methodology, rather than his or her conclusions, must be reviewed. The opinion clarified the trial judge's duty by identifying five factors that may be used to review 'scientific' methodology. These factors are the starting point for a Daubert challenge in most product liability cases.

The Court revisited expert testimony 4 years later in General Electric Co. v. Joiner , 522 U.S. 136 (1997), which held that Daubert decisions should be reviewed only on appeal for abuse of discretion. The opinion also broadened the Daubert inquiry. The Court found that there was no bright-line distinction between methodology and conclusions, so a trial judge may exclude expert testimony if there is too great a gap between a conclusion and its supporting data.

The final case in the Daubert trilogy, Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137 (1999), applied Daubert to all types of expert testimony, including non-scientific opinions. Kumho stated that the Daubert inquiry was flexible, and the trial court must determine the factors reviewed. The court may review factors other than the five identified in Daubert.

The consequence of the Daubert trilogy is that the relevance and reliability of any expert's testimony may be challenged on any grounds the trial court in its discretion believes proper. Rule 702, Fed. R. Evid., was amended effective December 1, 2000, to codify the Daubert trilogy. The Rule specifies the following three broad, generic areas for gate-keeping inquiry: whether '1) the testimony is based upon sufficient facts or data, 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case.' Courts continue to rely on the Daubert trilogy to interpret Rule 702. Thus, the specific factors identified in those cases to assess relevance and reliability, as well as the flexibility of that inquiry, remain vital.

Daubert Strategy

A Daubert challenge may be made at any time prior to or during trial. Because a typical challenge is complex, most are initially made prior to trial through a motion in limine or motion for summary judgment. If the challenge is not made well in advance of trial, the likelihood of success will be greatly diminished in many courts. Often, the ruling on the motion will be deferred in bench-tried cases until during the trial, when the court has a greater knowledge of the case; it will most likely receive a pretrial ruling in a jury-tried case.

A Daubert strategy requires determining whether the reasonably achievable goals of a pretrial Daubert challenge outweigh the likely costs and risks. The most obvious potential goal of a Daubert challenge is the striking of the opposition's expert prior to trial. If the expert's testimony is needed to establish liability ' such as plaintiff's product defect expert ' summary judgment may be granted defendant. Likewise, a defendant's case may be so weakened that settlement is the only reasonable alternative. A complete victory through motion practice is not, however, the only potential strategic goal of a Daubert challenge.

Another goal may be educating the court concerning the product, technology, or science involved, with the hope of having the expert testimony excluded at trial. The court may deny a Daubert motion but later exclude testimony based on the record developed at trial, which the judge will better understand through education gained from the motion. Even if  the testimony is not excluded, objections at trial may cause the court to limit the testimony to its most reliable points. If settlement is a desired outcome in the case, the goal of a Daubert motion may be maximizing bargaining power, particularly during the pendency of the motion. Another aim of a Daubert motion may be prompting the opposing expert to conduct testing. Although experts will rarely conduct testing after delivering their opinion, it has, on occasion, happened. (Opposing counsel once confided to the author, after a nominal settlement, that the threat of a motion challenging expert testimony had prompted testing that showed a fire could not be ignited in the way plaintiff's expert theorized.)

The primary reasons not to mount a pretrial Daubert challenge are expense and alerting the opposition to potential lines of cross-examination. There is no question that Daubert motions can be time-consuming and expensive. Product liability cases frequently involve complex technical issues that require detailed and lengthy briefing to explain in a Daubert motion. An unsuccessful Daubert motion also will alert opposing counsel to weaknesses in their expert's testimony, which will permit them to prepare the expert for cross-examination. If the Daubert challenge grounds are not strong, it may well be best to save the points that would be made in a Daubert motion for cross-examination.  Another reason to avoid a Daubert challenge is it may invite a reciprocal attack. If both parties' experts are vulnerable, the party with the burden of proof, in particular, should consider carefully before bringing a Daubert motion.

Tactics ' Preparing for the Expert Deposition

The expert's deposition is where most or all of the record to support the Daubert motion will be created. Preparation for the deposition must be painstaking. The Rule 26(a)(2)(B), Fed. R. Civ. P. report, which must contain a 'complete statement of all opinions to be expressed and the basis and reasons therefore,' is the starting point for that preparation. Many reports are inadequate because they are not detailed and complete. If the report is inadequate, counsel is faced with difficult decisions. If counsel believes that the trial judge will strictly enforce the Rule, the expert's deposition could be foregone. Objections could be made at trial to limit the expert's testimony to the report. This author is usually reluctant to use this tactic because trial judges tend to be lenient in their interpretation of expert reports, and explaining the inadequacies of the report may be difficult in the heat of trial. In the alternative, a demand for supplementation of the report may be made. If the response to the demand is not adequate, a motion seeking further supplementation could be filed.

Supplementation may not, however, be the best route. Discovering the expert's full opinion in the deposition may be best because requests for supplementation may cause further thought and work by the opposing expert that will permit him to present stronger testimony. It is advisable not to demand supplementation unless the report is so inadequate that deposition preparation is hampered.

A thorough investigation of the expert's background should be conducted. The Rule 26(a)(2)(B) report must contain identification of trial and deposition testimony for the preceding 4 years, and counsel should obtain and review copies of all testimony disclosed. Helpful admissions are occasionally found from this review, but more often a great deal is learned about the general methodology the expert uses. This knowledge should help in formulating deposition questions. Talking to counsel that previously questioned an opposing expert many times provides information.

Online databases should also be reviewed as a check on the accuracy of the prior testimony disclosure. The expert's name should also be checked in Westlaw or Lexis. Although these inquiries are many times fruitless, they occasionally yield helpful information, eg, a recent search found a Daubert decision disqualifying an opponent's engineering expert, which greatly helped in disqualifying him in the case at hand. Independent research into the expert's background and credentials also should be conducted. Verify that the expert actually has obtained the degrees he claims to have.  If the expert lists a professional organization as a credential, determine from the organization what must be done to obtain membership. Many times, membership involves no more than paying a fee and submitting an application. Production of the expert's complete file also should be sought prior to the deposition, as well as all documents containing data or information on which the expert relies.

Finally, counsel should develop an outline of deposition questions concerning each potential avenue of the Daubert challenge. Because the Daubert inquiry is flexible, counsel must be creative in developing the attack on the reliability and relevance of expert testimony. Every case is different, but the factors identified in the case law are starting points from which the analysis should begin. Creatively applying these starting points to the facts should help counsel develop a roadmap for the expert's deposition.

The conclusion of this article, in the April Issue of this newsletter, addresses the tactics to use while deposing an expert, briefing a Daubert motion, and having a hearing on that motion.

Robert O. Lesley is a partner in the Kansas City, MO, office of Sonnenschein Nath & Rosenthal. He specializes in the defense of product liability cases, and other complex litigation. Lesley is currently national counsel for two consumer products manufacturers. Phone: 816-460-2556.