<b><i>Daubert</i></b> Motions Really Do Work

A Rule 26 report disclosing proposed opinion testimony must contain, inter alia: 1) a complete statement of all opinions to be expressed and the basis and reasons for them; and 2) the facts or data considered by the witness in forming the opinions. Fed. R. Civ. P. 26(a)(2)(B); e.g., Novak v. Bd. of Trs., 777 F.3d 966, 972 (7th Cir. 2015). See Litigators on Experts, Wendy G. Couture and Allyson W. Haynes, eds. (ABA 2010), Chapter 4, “Expert Reports.” The Advisory Committee Notes on Rule 26 elaborate on the report's requirements:

The report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness. The report is to disclose the data and other information considered by the expert and any exhibits or charts and summarize or support the expert's opinions. [Advisory Committee Notes, 146 F.R.D. at 634 (emphasis added)].

See also Salgado v. GMC, 150 F.3d 735, 741 n.6 (7th Cir. 1998). Rule 26 enhances the district court's role as a gatekeeper, as it “permits 'an early and full evaluation' of evidentiary problems in a case and allows the court to 'make an early pretrial evaluation of issues of admissibility' carefully and meticulously.” Id. (quoting Robinson v. Missouri Pacific R.R. Co., 16 F.3d 1083, 1089 (10th Cir. 1994)).

A Rule 26 report “must include the 'how' and 'why' the expert reached a particular result, not merely the expert's conclusory opinions.” Id. Consequently, a report containing “sketchy, vague[,] or preliminary” information will fall short of Fed. R. Civ. P. 26(a)(2)(B)'s requirements. Id.

Why are the requirements of Rule 26 important? If a Rule 26 report is inadequate to inform the court and the opposing party of the witness's testimony — if, for example, it is conclusory and lacks foundational details — Rule 37 provides that the witness's opinions are not admissible.

Under Rule 37(c)(1), exclusion is both “automatic and mandatory” when the disclosed testimony is inadequate unless the proponent of the expert witness can establish that its violation of Rule 26 was “either justified or harmless.” Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008) (quoting Keach v. U.S. Trust Co., 419 F.3d 626, 639 (7th Cir. 2005)); see also Wright, Miller And Marcus, Federal Practice and Procedure: Civil 2d § 2031.1 (If the expert report does not set forth the substance of the direct examination, Rule 37(c)(1) provides for automatic exclusion of information that should have been revealed but was not.).

Avoid Needless Depositions

Despite widespread adoption and enforcement of the expert disclosure rule, ample anecdotal evidence suggests that expert witness depositions today are nearly as lengthy — and just as common — as they were before the 1993 amendments. But why are expert depositions still the rule rather than the exception? There are at least two likely explanations, neither of them terribly flattering to lawyers.

It may simply be a case of “I can, therefore I will.” Because a lawyer can nearly always justify the deposition of an opposing expert, the opposing expert's deposition is taken. Never mind that travel, the court reporter's fees, the witness's fee, and the deposing attorney's fee can quickly add up to $10,000 or more. Never mind, too, that most litigators go from receiving the expert's report to scheduling the expert's deposition almost as thoughtlessly as starting their cars and shifting into gear.

The decision to take an opposing expert's deposition also may be the product of reasoned fear. Either the attorney or the client (or both) has reacted to the consequences of a bad litigation result attributable (in fearsome hindsight, of course) to a failure to depose the other side's expert. Under any readily imagined scenario of this kind, the decision-maker concludes that it is better to take the deposition than to suffer the consequences of post-litigation recriminations.

Regardless of the thought process (or lack thereof), too little consideration is given to this threshold question: “Now that I have a Rule 26 report in hand — and I can read the witness's opinions and the basis and reasons therefor, review the data or other information she considered, see which exhibits the witness will use to support these opinions, and I know the witness's qualifications, publications, compensation, and testifying history — why in the world should I take her discovery deposition?”

Ironically, deposing the other side's expert notwithstanding receipt of a comprehensive report can be motivated by a plan to exclude the witness under the FRE 702. Although the intent to challenge a witness can be a valid reason for taking the witness's deposition, it is more often the case that a deposition is not needed — perhaps even counterproductive.

We will discuss further tips for increasing the likelihood of success with Daubert motions in next month's issue.

*****
John L. Tate, a member of this newsletter's Board of Editors, is a Fellow of the American College of Trial Lawyers and a member of the southeastern regional law firm Stites & Harbison PLLC. He practices from the firm's office in Louisville, KY.

Like baseball batters in a lineup, the home-run potential of any given Daubert motion varies greatly. (A Daubert motion is one seeking to exclude unqualified expert evidence. See Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579 (1993).) Statistics go out the window with every at-bat, because statistics cannot predict individual performance. Players without a good eye for the fast ball usually do not make it to the big leagues; lawyers without the skill set to deconstruct and demonstrate the methodological flaws in a disclosure of opinion testimony may get to play in the big leagues, but they have terrible batting averages. What can be done to improve the odds?

Focus on the Rule 26(a)(2) Report

The starting point for any successful challenge under Federal Rules of Evidence (FRE) 702 and Daubert is the form and content of the witness's disclosure under Federal Rules of Civil Procedure (FRCP) 26(a)(2).

A Rule 26 report disclosing proposed opinion testimony must contain, inter alia: 1) a complete statement of all opinions to be expressed and the basis and reasons for them; and 2) the facts or data considered by the witness in forming the opinions. Fed. R. Civ. P. 26(a)(2)(B); e.g., Novak v. Bd. of Trs. , 777 F.3d 966, 972 (7th Cir. 2015). See Litigators on Experts, Wendy G. Couture and Allyson W. Haynes, eds. (ABA 2010), Chapter 4, “Expert Reports.” The Advisory Committee Notes on Rule 26 elaborate on the report's requirements:

The report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness. The report is to disclose the data and other information considered by the expert and any exhibits or charts and summarize or support the expert's opinions. [Advisory Committee Notes, 146 F.R.D. at 634 (emphasis added)].

See also Salgado v. GMC , 150 F.3d 735, 741 n.6 (7th Cir. 1998). Rule 26 enhances the district court's role as a gatekeeper, as it “permits 'an early and full evaluation' of evidentiary problems in a case and allows the court to 'make an early pretrial evaluation of issues of admissibility' carefully and meticulously.” Id . (quoting Robinson v. Missouri Pacific R.R. Co. , 16 F.3d 1083, 1089 (10th Cir. 1994)).

A Rule 26 report “must include the 'how' and 'why' the expert reached a particular result, not merely the expert's conclusory opinions.” Id. Consequently, a report containing “sketchy, vague[,] or preliminary” information will fall short of Fed. R. Civ. P. 26(a)(2)(B)'s requirements. Id.

Why are the requirements of Rule 26 important? If a Rule 26 report is inadequate to inform the court and the opposing party of the witness's testimony — if, for example, it is conclusory and lacks foundational details — Rule 37 provides that the witness's opinions are not admissible.

Under Rule 37(c)(1), exclusion is both “automatic and mandatory” when the disclosed testimony is inadequate unless the proponent of the expert witness can establish that its violation of Rule 26 was “either justified or harmless.” Ciomber v. Coop. Plus, Inc. , 527 F.3d 635, 641 (7th Cir. 2008) (quoting Keach v. U.S. Trust Co. , 419 F.3d 626, 639 (7th Cir. 2005)); see also Wright, Miller And Marcus, Federal Practice and Procedure: Civil 2d § 2031.1 (If the expert report does not set forth the substance of the direct examination, Rule 37(c)(1) provides for automatic exclusion of information that should have been revealed but was not.).

Avoid Needless Depositions

Despite widespread adoption and enforcement of the expert disclosure rule, ample anecdotal evidence suggests that expert witness depositions today are nearly as lengthy — and just as common — as they were before the 1993 amendments. But why are expert depositions still the rule rather than the exception? There are at least two likely explanations, neither of them terribly flattering to lawyers.

It may simply be a case of “I can, therefore I will.” Because a lawyer can nearly always justify the deposition of an opposing expert, the opposing expert's deposition is taken. Never mind that travel, the court reporter's fees, the witness's fee, and the deposing attorney's fee can quickly add up to $10,000 or more. Never mind, too, that most litigators go from receiving the expert's report to scheduling the expert's deposition almost as thoughtlessly as starting their cars and shifting into gear.

The decision to take an opposing expert's deposition also may be the product of reasoned fear. Either the attorney or the client (or both) has reacted to the consequences of a bad litigation result attributable (in fearsome hindsight, of course) to a failure to depose the other side's expert. Under any readily imagined scenario of this kind, the decision-maker concludes that it is better to take the deposition than to suffer the consequences of post-litigation recriminations.

Regardless of the thought process (or lack thereof), too little consideration is given to this threshold question: “Now that I have a Rule 26 report in hand — and I can read the witness's opinions and the basis and reasons therefor, review the data or other information she considered, see which exhibits the witness will use to support these opinions, and I know the witness's qualifications, publications, compensation, and testifying history — why in the world should I take her discovery deposition?”

Ironically, deposing the other side's expert notwithstanding receipt of a comprehensive report can be motivated by a plan to exclude the witness under the FRE 702. Although the intent to challenge a witness can be a valid reason for taking the witness's deposition, it is more often the case that a deposition is not needed — perhaps even counterproductive.

We will discuss further tips for increasing the likelihood of success with Daubert motions in next month's issue.

*****
John L. Tate, a member of this newsletter's Board of Editors, is a Fellow of the American College of Trial Lawyers and a member of the southeastern regional law firm Stites & Harbison PLLC. He practices from the firm's office in Louisville, KY.