Daubert: 10 Years Later

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.