Amended FRCP 26

When the new FRCP 26 came into effect, it made significant changes to the rules for both retained testifying experts and non-retained testifying experts. The non-testifying experts affected by these amendments, such as employees and physicians, are those who do not regularly provide expert testimony, but are qualified as experts because of their expertise in a given field. The Revised Rule 26 reduced production requirements related to experts, their underlying data and drafts; it created a class of “no-report” experts and protected draft reports from discovery.

In summary, the revised Rule 26 added:

Narrower requirements for disclosure under 26(a)(2)(B). The rule narrowed down the broad requirement that “data or other information” be provided by requiring that only “data and facts” be disclosed.

Protections for draft reports under 26(b)(4)(B) ' Drafts of expert reports and disclosures area no longer discoverable.

In summary, the revised Rule 26 added:

Protections for certain communications between lawyers and experts under 26(b)(4)(C). Lawyer-expert communications are no longer discoverable except to the extent that they meet three narrow exceptions.

An express requirement for no-report experts under 26(a)(2)(C). Experts who do not regularly provide expert testimony must file a disclosure regarding any such expert's opinions and the bases for them.

These changes to Rule 26 reflect the realities of litigation involving experts: Retained experts are rarely neutral witnesses. Good trial lawyers have played and will continue to play an active role in shaping an expert's opinions and the presentation of those opinions to a fact-finder. The changes to Rule 26 should cause expert related discovery to be more focused on the strengths and weaknesses of the substance of an opinion and much less on the process of report drafting and communications between lawyer and expert.

Do These Changes Affect the Success of Daubert
Motions?

While recent case law is helpful in understanding how courts are likely to interpret and apply the changes to Rule 26 related to experts, the effect of these changes on Daubert motion practice has yet to be seen. However, this much is clear: Habitually filing Daubert motions for every opposing expert is not smart trial practice. Technical experts quite often are repeat operators. It is common for the same set of experts to appear over and over in certain product liability cases, e.g., automotive litigation. These technical experts are usually experienced “professional” witnesses, and because the standard for admitting their testimony is still relatively low, Daubert challenges rarely succeed.

Recently published data on the success of Daubert challenges supports this view. In 2010, pricewaterhouseCoopers issued a report of its survey on challenges to financial expert witnesses under the Daubert standards. Daubert Challenges to Financial Experts: An 11-year study of trends and outcomes, available at www.pwc.com/en_US/us/forensic-services/publications/assets/daubert-study-2010.pdf. The study analyzed federal and state court written rulings, and included a review of 6,141 Daubert challenges to witnesses from all fields. Id. at 3. The study showed that since Kumho Tire in 1999, the number of challenges has been steadily growing, resulting in a three-and a half-fold total increase of challenges from 2000 to 2010. Id. at 5, Figure 1 (page 3). Of all the expert challenges during this period, only 45% of challenges succeeded in either complete or partial exclusion. And this relatively low success rate has remained relatively consistent over the past 10 years. Id. at 6, Figure 2 (below); see also Figures 1 through 3 and 4, below. In addition, a closer look at the data for 2010 reveals that complete exclusion of expert testimony occurred only 25% of the time, and partial exclusion was granted only 24% of the time. Id. at 6, Figure 3. Moreover, if a Daubert decision is appealed, statistics from circuit court decisions indicate that the district courts' rulings on Daubert motions are affirmed 87% of the time. Peter Nordberg, Daubert in the Circuits, available at www.daubertontheweb.com/circuits.htm. In other words, there is essentially no help on appeal if a Daubert challenge is denied at the trial court level.

Losing a Challenge

The obvious consequence of losing a Daubert challenge is that the opposing expert remains in the case with his opinions intact. But what are the less obvious consequences? Given the statistical odds of losing, too often the challenge does nothing more than educate opposing counsel and his or her expert of your strongest cross exam points. This free preview of your cross-exam outline provides opposing counsel and his expert with the best means to improve their scientific method and opinions well before trial. Therefore, a very detailed Daubert motion that does not succeed is not harmless. That motion exposes one's trial strategy to opposing counsel all at the expense of the client. This point becomes even more significant with the new Rule 26 in place, which protects drafts and most communications between lawyers and experts. Given the low success rate of Daubert motions and the consequences that flow from losing, counsel should be very cautious about over “Dauberting.”

How to Increase the Chances of Success

Picking your battles and doing your homework may help you beat the odds. It goes without saying that one way to avoid losing a Daubert challenge is to not raise one. Objectively assessing the chances of success on the motion before that assigned district judge will increase your chances of success. In addition, having information on the expert that you plan to challenge is key. You will lose if you challenge experts who have survived multiple challenges over the same issues.

There are numerous resources that contain information about Daubert challenges to experts and judges' dispositions to grant such Daubert challenges. One source is the LexisNexis Daubert Tracker ' Case Reports. In addition, with the Daubert Tracker, one may search Daubert challenges before a particular judge, or how frequently a lawyer hires a particular expert.

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Thomas P. Branigan, a senior partner at Bowman and Brooke LLP, is a trial lawyer resident in the firm's Troy, MI, office. Tina Georgieva is an associate. Charts reprinted with permission of authors Douglas E. Branch and Lawrence F. Ranallo of PricewaterhouseCoopers.

Federal Rule of Evidence 702 governs the admission of expert testimony. Rule 702 allows testimony to be admitted if the scientific, technical or other specialized knowledge within that testimony will help the trier-of-fact make sense of the evidence or understand the facts. In its ruling for Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), the Supreme Court established that judges are the “gatekeepers” against “junk science.”

Federal Rule of Civil Procedure 26, which outlines the requirements and limitations of expert witness disclosures, was substantially amended on Dec. 1, 2010. Prior to 2010, FRCP 26 was last amended in 1993.

Significant Changes

When the new FRCP 26 came into effect, it made significant changes to the rules for both retained testifying experts and non-retained testifying experts. The non-testifying experts affected by these amendments, such as employees and physicians, are those who do not regularly provide expert testimony, but are qualified as experts because of their expertise in a given field. The Revised Rule 26 reduced production requirements related to experts, their underlying data and drafts; it created a class of “no-report” experts and protected draft reports from discovery.

In summary, the revised Rule 26 added:

Narrower requirements for disclosure under 26(a)(2)(B). The rule narrowed down the broad requirement that “data or other information” be provided by requiring that only “data and facts” be disclosed.

Protections for draft reports under 26(b)(4)(B) ' Drafts of expert reports and disclosures area no longer discoverable.

In summary, the revised Rule 26 added:

Protections for certain communications between lawyers and experts under 26(b)(4)(C). Lawyer-expert communications are no longer discoverable except to the extent that they meet three narrow exceptions.

An express requirement for no-report experts under 26(a)(2)(C). Experts who do not regularly provide expert testimony must file a disclosure regarding any such expert's opinions and the bases for them.

These changes to Rule 26 reflect the realities of litigation involving experts: Retained experts are rarely neutral witnesses. Good trial lawyers have played and will continue to play an active role in shaping an expert's opinions and the presentation of those opinions to a fact-finder. The changes to Rule 26 should cause expert related discovery to be more focused on the strengths and weaknesses of the substance of an opinion and much less on the process of report drafting and communications between lawyer and expert.

Do These Changes Affect the Success of Daubert
Motions?

While recent case law is helpful in understanding how courts are likely to interpret and apply the changes to Rule 26 related to experts, the effect of these changes on Daubert motion practice has yet to be seen. However, this much is clear: Habitually filing Daubert motions for every opposing expert is not smart trial practice. Technical experts quite often are repeat operators. It is common for the same set of experts to appear over and over in certain product liability cases, e.g., automotive litigation. These technical experts are usually experienced “professional” witnesses, and because the standard for admitting their testimony is still relatively low, Daubert challenges rarely succeed.

Recently published data on the success of Daubert challenges supports this view. In 2010, pricewaterhouseCoopers issued a report of its survey on challenges to financial expert witnesses under the Daubert standards. Daubert Challenges to Financial Experts: An 11-year study of trends and outcomes, available at www.pwc.com/en_US/us/forensic-services/publications/assets/daubert-study-2010.pdf. The study analyzed federal and state court written rulings, and included a review of 6,141 Daubert challenges to witnesses from all fields. Id. at 3. The study showed that since Kumho Tire in 1999, the number of challenges has been steadily growing, resulting in a three-and a half-fold total increase of challenges from 2000 to 2010. Id. at 5, Figure 1 (page 3). Of all the expert challenges during this period, only 45% of challenges succeeded in either complete or partial exclusion. And this relatively low success rate has remained relatively consistent over the past 10 years. Id. at 6, Figure 2 (below); see also Figures 1 through 3 and 4, below. In addition, a closer look at the data for 2010 reveals that complete exclusion of expert testimony occurred only 25% of the time, and partial exclusion was granted only 24% of the time. Id. at 6, Figure 3. Moreover, if a Daubert decision is appealed, statistics from circuit court decisions indicate that the district courts' rulings on Daubert motions are affirmed 87% of the time. Peter Nordberg, Daubert in the Circuits, available at www.daubertontheweb.com/circuits.htm. In other words, there is essentially no help on appeal if a Daubert challenge is denied at the trial court level.

Losing a Challenge

The obvious consequence of losing a Daubert challenge is that the opposing expert remains in the case with his opinions intact. But what are the less obvious consequences? Given the statistical odds of losing, too often the challenge does nothing more than educate opposing counsel and his or her expert of your strongest cross exam points. This free preview of your cross-exam outline provides opposing counsel and his expert with the best means to improve their scientific method and opinions well before trial. Therefore, a very detailed Daubert motion that does not succeed is not harmless. That motion exposes one's trial strategy to opposing counsel all at the expense of the client. This point becomes even more significant with the new Rule 26 in place, which protects drafts and most communications between lawyers and experts. Given the low success rate of Daubert motions and the consequences that flow from losing, counsel should be very cautious about over “Dauberting.”

How to Increase the Chances of Success

Picking your battles and doing your homework may help you beat the odds. It goes without saying that one way to avoid losing a Daubert challenge is to not raise one. Objectively assessing the chances of success on the motion before that assigned district judge will increase your chances of success. In addition, having information on the expert that you plan to challenge is key. You will lose if you challenge experts who have survived multiple challenges over the same issues.

There are numerous resources that contain information about Daubert challenges to experts and judges' dispositions to grant such Daubert challenges. One source is the LexisNexis Daubert Tracker ' Case Reports. In addition, with the Daubert Tracker, one may search Daubert challenges before a particular judge, or how frequently a lawyer hires a particular expert.

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Thomas P. Branigan, a senior partner at Bowman and Brooke LLP, is a trial lawyer resident in the firm's Troy, MI, office. Tina Georgieva is an associate. Charts reprinted with permission of authors Douglas E. Branch and Lawrence F. Ranallo of PricewaterhouseCoopers.