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

The Reference Manual's extra cachet comes from its origins as a publication of the Federal Judicial Center “in furtherance of the Center's statutory mission to develop and conduct education programs for judicial branch employees.” Id. Few federal courthouses are without a copy of the Federal Judicial Center's Reference Manual, which means every clerk, magistrate judge or district judge can read for themselves the principles against which an expert witness's methods can be measured.

Of course, the Reference Manual is not a universal solvent. It does not address every possible field of opinion testimony, so diligently prepared challenges to sketchy opinion testimony often draw on standard texts or seminal articles. These sources can supply the advocate with important first principles and the right vocabulary.

And a lawyer who cannot grasp the fundamental mechanics of a given witness's field of study can always go back to school. Using consultants as remedial teachers is more common than one might think. Arguably the highest and best use for non-testifying consultants is to aid the dissection of an opposing witness's Rule 26 report. But attending lectures on the opposing witness's field of study is also common — and, in the Internet age, quite easy. If YouTube videos or TED Talks are not available, the ambitious advocate can literally go back to school with the huge catalog of college level lectures available from The Great Courses®.

Remember, if the analytical tools of science and philosophy can expose the flaws of a Rule 26 report, there is no need to take the witness's deposition. The witness's report can serve as a basis for the Daubert motion just as readily as the witness's deposition.

Follow FRE 702

FRE 702 embodies the U.S. Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147, 152 (1999), and their progeny. The rule's objective is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho, 526 U.S. at 152. Assessing the admissibility of proposed opinion testimony using the principles articulated in FRE 702 and applicable case law is crucial because so-called “expert” testimony “can be both powerful and quite misleading.” Daubert, 509 U.S. at 595.

Together, FRE 702 and Daubert articulate the trial court's mandatory gate-keeping role to be focused on the facts, reasoning and methodology used by a witness to ensure that opinion testimony rests upon a “reliable foundation.” See Daubert, 509 U.S. at 597; General Electric v. Joiner, 522 U.S. 136, 146 (1997); United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir. 2001). This gate-keeping function is threefold. The trial court must determine: 1) whether the expert is qualified; 2) whether his or her methodology is scientifically reliable; and 3) whether his or her testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893-94 (7th Cir. 2011)

Analysis of all three parts is required by the rule. Even “[a] supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based upon some recognized scientific method and are reliable and relevant under the test set forth by the Supreme Court in Daubert.” Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.2011).

First, as to an expert's qualifications, the area in which the witness has “superior knowledge, skill, experience, or education” must be compared with “the subject matter of the witness's testimony.” Am. Honda Motor Co. v. Allen, 600 F.3d 813, 816 (7th Cir. 2010) (quoting Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990)). Thus, Daubert must be applied “with due regard for the specialization of modern science.” Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002). While an expert need not necessarily be a specialist in a given field in order to testify, he or she nonetheless will not be qualified to testify if he or she does not possess any education, know- ledge, experience or skill regarding the specialized topic of his or her testimony. Hall v. Flanner, 840 F.3d 922, 929-30 (7th Cir. 2016).

But attacking an expert's qualifications is often an exercise in exasperation. Because “education, training or experience” can qualify almost anyone with specialized knowledge, attacking a witness's perceived lack of qualifications can be like the batter who swings wildly at an outside slider. He winds up looking foolish.

The second factor, the witness's methodology, is usually a far more fruitful source of a successful challenge. A trial court must assess the reasoning and methodology underlying opinion testimony to determine “fit” — whether it is applicable to the case; and “reliability” — whether it is scientifically valid. Daubert, 509 U.S. at 589. This holds true because Rule 702 and Daubert prohibit “subjective belief or unsupported conjecture.” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009) (citing Daubert, 509 U.S. at 589-90; Goodwin v. MTD Prods., Inc., 232 F.3d 600, 608-09 (7th Cir. 2000)).

Apply Scientific Methods

Although a trial court's threshold inquiry is flexible, the touchstone established by Daubert is the employment of the scientific method. See, e.g., Cabrera v. Cordis Corp., 134 F.3d 1418, 1423 (9th Cir. 1998) (excluding an expert's testimony because he did not “demonstrate that he followed a scientific method embraced by at least some other experts in the field”); Heisler v. Maxtor Corp., 2011 U.S. Dist. LEXIS 43380, *20-22 (N.D.Cal. Apr. 20, 2011) (identifying a variety of concerns with the reliability of an expert opinion).

Further, an expert who “starts his analysis with a conclusion that needs to be established” — rather than an expert who starts with research or testing and then ends with a conclusion — does not utilize a methodology that can pass muster under Daubert. See Ind. Ins. Co. v. Valmont Elec. Inc., 2001 U.S. Dist. LEXIS 23256, *24-25 (S.D. Ind. Dec. 27, 2001). As the U.S. Court of Appeals for the Seventh Circuit has explained, an expert may not “start[] his analysis based upon the assumption that the product failed (the very question that he was called upon to resolve).” Clark, 192 F.3d at 757.

Consequently, courts across the country have refused to admit testimony when the expert “reasoned from an end result in order to hypothesize what needed to be known but was not” instead of “reasoning from known facts to reach a conclusion.” Mitchell v. Gencorp Inc., 165 F.3d 778, 783 (10th Cir. 1999) (quoting Sorensen v. Shaklee Corp., 31 F.3d 638, 649 (8th Cir. 1994)); see also Marsh v. W.R. Grace & Co., 80 F. App'x 883, 886 (4th Cir. 2003); Ill. Cent. R.R. v. Dupont, No. 00-500-D-M2, 2006 U.S. Dist. LEXIS 100793, at *9 (M.D. La. June 30, 2006); In re Meridia Prods. Liab. Litig., 328 F. Supp. 2d 791, 805 (N.D. Ohio 2004), aff'd 447 F.3d 861 (6th Cir. 2006); Agee v. Purdue Pharms., Inc., No. CIV-03-0787-HE, 2004 U.S. Dist. LEXIS 30551, at *11-13 (W.D. Okla. Nov. 22, 2004); Lake Mich. Contrs. v. Manitowoc Co., 225 F. Supp. 2d 791, 803 (W.D. Mich. 2002). This type of backwards reasoning “turns scientific analysis on its head” and must be excluded due to the unreliability of its methodology. Sorensen, 31 F.3d at 649.

The third factor — helpfulness of the expert's opinions — is automatically applicable if the witness does not adequately explain his or her process of reasoning. United States v. Noel, 581 F.3d 490, 497 (7th Cir. 2009) (citing Mid-State Fertilizer, 877 F.2d 1333, 1339 (7th Cir. 1989)). An expert's opinion is meaningful only if he or she substantiates the opinion with analysis. Clark, 192 F.3d at 757 (quoting Huey v. United Parcel Serv., Inc., 165 F.3d 1084, 1087 (7th Cir. 1999)). Therefore, an expert who gives “no basis whatsoever for her conclusion” does not help the jury understand the evidence or determine a fact in issue; instead, “an expert's opinion that lacks proper substantiation [is] worthless.” Noel, 581 F.3d at 497 (internal quotation marks omitted).

Expose Questionable Data

Trial courts assessing a proffer of opinion testimony under Rule 702 often need to be reminded of the requirements of Rule 703. “If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded.” In re Paoli RR. Yard PCB Litig., 35 F.3d 717, 748 (3d. Cir. 1994); see also Cummins v. Lyle Indus., 93 F.3d 362, 371-72 (7th Cir. 1996).

Opinion testimony based on materials or summaries supplied solely by counsel — without independent verification — subjects that testimony to exclusion. Lyman v. St. Jude Med. S.C., Inc., 580 F. Supp. 2d 719, 726-27 (E.D. Wisc. 2008); see also MDG Int'l, Inc. v. Australian Gold, Inc., No. 1:07-cv-1096-SEB-TAB, 2009 U.S. Dist. LEXIS 55652, at *13-14 (S.D. Ind. June 29, 2009). And “an expert opinion based on facts prepared in anticipation of litigation may be deemed unreliable.” Sommerfield v. City of Chicago, 254 F.R.D. 317, 323 (N.D. Ill. 2008) (citing Soden v. Freightliner Corp., 714 F.2d 498, 503-04 (5th Cir. 1983)). Accordingly, an expert's testimony generally will be excluded if it “merely parrots information provided to him by a party.” King-Ind. Forge Inc. v. Millennium Forge Inc., No. 1:07-cv-00341-SEB-DML, 2009 U.S. Dist. LEXIS 96131, at *4 (S.D. Ind. Sep. 29, 2009).

Further, an expert's opinion is not admissible if he or she is merely “vouching for the truth of what [another expert] had told him.” Dura Auto. Sys., 285 F.3d at 613 (quoting In re James Wilson Assocs., 965 F.2d 160, 173 (7th Cir. 1992)). “A scientist, however well-credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different specialty. That would not be responsible science.” Id. at 613.

Thus, while Rule 703 does not preclude an expert in a technical field from “bas[ing] an opinion in part on what a different expert believes on the basis of expert knowledge not possessed by the first expert,” a testifying expert may not rely on other experts' opinions when “the soundness of the underlying expert judgment is in issue.” Id. at 613. For example, if the testifying expert based his or her conclusions on a study from another discipline and the study raises questions that only an expert in the study's field could answer, then an expert from that field would need to testify; the questionable study could not hide behind the testifying expert. Id. at 614.

Conclusion

Circling back to Part One of this article, the trial bar's doubts and disagreements about the effectiveness of motions under FRE 702 ought to be alleviated by the recognition that well-crafted arguments can and will succeed.

*****
John L. Tate is a Fellow of the American College of Trial Lawyers and a member of the southeastern law firm Stites & Harbison PLLC.

Editor's note: Last month, the author described two of his six tips for achieving success with Daubert motions. Here, he concludes by offering four more.

Use Reliable Resources

Before taking a witness's deposition as a prelude to a motion to exclude, serious students of FRE 702 and Daubert should first spend a few hours with the Federal Judicial Center's Reference Manual for Scientific Evidence. From Dr. David Goodstein's chapter “How Science Works” to the chapter by Stanford University's Dr. Channing Robertson, et al., titled “Reference Guide on Engineering,” the Reference Manual offers step-by-step guidance on deconstructing the factual and philosophical methodologies in such diverse fields as statistics, economics, epidemiology, toxicology, engineering, and medicine.

The Reference Manual's extra cachet comes from its origins as a publication of the Federal Judicial Center “in furtherance of the Center's statutory mission to develop and conduct education programs for judicial branch employees.” Id. Few federal courthouses are without a copy of the Federal Judicial Center's Reference Manual, which means every clerk, magistrate judge or district judge can read for themselves the principles against which an expert witness's methods can be measured.

Of course, the Reference Manual is not a universal solvent. It does not address every possible field of opinion testimony, so diligently prepared challenges to sketchy opinion testimony often draw on standard texts or seminal articles. These sources can supply the advocate with important first principles and the right vocabulary.

And a lawyer who cannot grasp the fundamental mechanics of a given witness's field of study can always go back to school. Using consultants as remedial teachers is more common than one might think. Arguably the highest and best use for non-testifying consultants is to aid the dissection of an opposing witness's Rule 26 report. But attending lectures on the opposing witness's field of study is also common — and, in the Internet age, quite easy. If YouTube videos or TED Talks are not available, the ambitious advocate can literally go back to school with the huge catalog of college level lectures available from The Great Courses®.

Remember, if the analytical tools of science and philosophy can expose the flaws of a Rule 26 report, there is no need to take the witness's deposition. The witness's report can serve as a basis for the Daubert motion just as readily as the witness's deposition.

Follow FRE 702

FRE 702 embodies the U.S. Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals Inc. , 509 U.S. 579 (1993), Kumho Tire Co. Ltd. v. Carmichael , 526 U.S. 137, 147, 152 (1999), and their progeny. The rule's objective is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho, 526 U.S. at 152. Assessing the admissibility of proposed opinion testimony using the principles articulated in FRE 702 and applicable case law is crucial because so-called “expert” testimony “can be both powerful and quite misleading.” Daubert, 509 U.S. at 595.

Together, FRE 702 and Daubert articulate the trial court's mandatory gate-keeping role to be focused on the facts, reasoning and methodology used by a witness to ensure that opinion testimony rests upon a “reliable foundation.” See Daubert, 509 U.S. at 597; General Electric v. Joiner , 522 U.S. 136, 146 (1997); United States v. Vallejo , 237 F.3d 1008, 1019 (9th Cir. 2001). This gate-keeping function is threefold. The trial court must determine: 1) whether the expert is qualified; 2) whether his or her methodology is scientifically reliable; and 3) whether his or her testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Bielskis v. Louisville Ladder, Inc. , 663 F.3d 887, 893-94 (7th Cir. 2011)

Analysis of all three parts is required by the rule. Even “[a] supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based upon some recognized scientific method and are reliable and relevant under the test set forth by the Supreme Court in Daubert .” Clark v. Takata Corp. , 192 F.3d 750, 759 n.5 (7th Cir. 1999); Ellis v. Costco Wholesale Corp. , 657 F.3d 970, 982 (9th Cir.2011).

First, as to an expert's qualifications, the area in which the witness has “superior knowledge, skill, experience, or education” must be compared with “the subject matter of the witness's testimony.” Am. Honda Motor Co. v. Allen , 600 F.3d 813, 816 (7th Cir. 2010) (quoting Carroll v. Otis Elevator Co. , 896 F.2d 210, 212 (7th Cir. 1990)). Thus, Daubert must be applied “with due regard for the specialization of modern science.” Dura Auto. Sys. of Ind., Inc. v. CTS Corp. , 285 F.3d 609, 614 (7th Cir. 2002). While an expert need not necessarily be a specialist in a given field in order to testify, he or she nonetheless will not be qualified to testify if he or she does not possess any education, know- ledge, experience or skill regarding the specialized topic of his or her testimony. Hall v. Flanner , 840 F.3d 922, 929-30 (7th Cir. 2016).

But attacking an expert's qualifications is often an exercise in exasperation. Because “education, training or experience” can qualify almost anyone with specialized knowledge, attacking a witness's perceived lack of qualifications can be like the batter who swings wildly at an outside slider. He winds up looking foolish.

The second factor, the witness's methodology, is usually a far more fruitful source of a successful challenge. A trial court must assess the reasoning and methodology underlying opinion testimony to determine “fit” — whether it is applicable to the case; and “reliability” — whether it is scientifically valid. Daubert, 509 U.S. at 589. This holds true because Rule 702 and Daubert prohibit “subjective belief or unsupported conjecture.” Lewis v. CITGO Petroleum Corp. , 561 F.3d 698, 705 (7th Cir. 2009) (citing Daubert , 509 U.S. at 589-90; Goodwin v. MTD Prods., Inc. , 232 F.3d 600, 608-09 (7th Cir. 2000)).

Apply Scientific Methods

Although a trial court's threshold inquiry is flexible, the touchstone established by Daubert is the employment of the scientific method. See, e.g., Cabrera v. Cordis Corp. , 134 F.3d 1418, 1423 (9th Cir. 1998) (excluding an expert's testimony because he did not “demonstrate that he followed a scientific method embraced by at least some other experts in the field”); Heisler v. Maxtor Corp., 2011 U.S. Dist. LEXIS 43380, *20-22 (N.D.Cal. Apr. 20, 2011) (identifying a variety of concerns with the reliability of an expert opinion).

Further, an expert who “starts his analysis with a conclusion that needs to be established” — rather than an expert who starts with research or testing and then ends with a conclusion — does not utilize a methodology that can pass muster under Daubert. See Ind. Ins. Co. v. Valmont Elec. Inc., 2001 U.S. Dist. LEXIS 23256, *24-25 (S.D. Ind. Dec. 27, 2001). As the U.S. Court of Appeals for the Seventh Circuit has explained, an expert may not “start[] his analysis based upon the assumption that the product failed (the very question that he was called upon to resolve).” Clark, 192 F.3d at 757.

Consequently, courts across the country have refused to admit testimony when the expert “reasoned from an end result in order to hypothesize what needed to be known but was not” instead of “reasoning from known facts to reach a conclusion.” Mitchell v. Gencorp Inc. , 165 F.3d 778, 783 (10th Cir. 1999) (quoting Sorensen v. Shaklee Corp. , 31 F.3d 638, 649 (8th Cir. 1994)); see also Marsh v. W.R. Grace & Co. , 80 F. App'x 883, 886 (4th Cir. 2003); Ill. Cent. R.R. v. Dupont, No. 00-500-D-M2, 2006 U.S. Dist. LEXIS 100793, at *9 (M.D. La. June 30, 2006); In re Meridia Prods. Liab. Litig., 328 F. Supp. 2d 791, 805 (N.D. Ohio 2004), aff'd 447 F.3d 861 (6th Cir. 2006); Agee v. Purdue Pharms., Inc., No. CIV-03-0787-HE, 2004 U.S. Dist. LEXIS 30551, at *11-13 (W.D. Okla. Nov. 22, 2004); Lake Mich. Contrs. v. Manitowoc Co. , 225 F. Supp. 2d 791, 803 (W.D. Mich. 2002). This type of backwards reasoning “turns scientific analysis on its head” and must be excluded due to the unreliability of its methodology. Sorensen, 31 F.3d at 649.

The third factor — helpfulness of the expert's opinions — is automatically applicable if the witness does not adequately explain his or her process of reasoning. United States v. Noel , 581 F.3d 490, 497 (7th Cir. 2009) (citing Mid-State Fertilizer , 877 F.2d 1333, 1339 (7th Cir. 1989)). An expert's opinion is meaningful only if he or she substantiates the opinion with analysis. Clark , 192 F.3d at 757 (quoting Huey v. United Parcel Serv., Inc. , 165 F.3d 1084, 1087 (7th Cir. 1999)). Therefore, an expert who gives “no basis whatsoever for her conclusion” does not help the jury understand the evidence or determine a fact in issue; instead, “an expert's opinion that lacks proper substantiation [is] worthless.” Noel, 581 F.3d at 497 (internal quotation marks omitted).

Expose Questionable Data

Trial courts assessing a proffer of opinion testimony under Rule 702 often need to be reminded of the requirements of Rule 703. “If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded.” In re Paoli RR. Yard PCB Litig., 35 F.3d 717, 748 (3d. Cir. 1994); see also Cummins v. Lyle Indus. , 93 F.3d 362, 371-72 (7th Cir. 1996).

Opinion testimony based on materials or summaries supplied solely by counsel — without independent verification — subjects that testimony to exclusion. Lyman v. St. Jude Med. S.C., Inc. , 580 F. Supp. 2d 719, 726-27 (E.D. Wisc. 2008); see also MDG Int'l, Inc. v. Australian Gold, Inc., No. 1:07-cv-1096-SEB-TAB, 2009 U.S. Dist. LEXIS 55652, at *13-14 (S.D. Ind. June 29, 2009). And “an expert opinion based on facts prepared in anticipation of litigation may be deemed unreliable.” Sommerfield v. City of Chicago , 254 F.R.D. 317, 323 (N.D. Ill. 2008) (citing Soden v. Freightliner Corp. , 714 F.2d 498, 503-04 (5th Cir. 1983)). Accordingly, an expert's testimony generally will be excluded if it “merely parrots information provided to him by a party.” King-Ind. Forge Inc. v. Millennium Forge Inc., No. 1:07-cv-00341-SEB-DML, 2009 U.S. Dist. LEXIS 96131, at *4 (S.D. Ind. Sep. 29, 2009).

Further, an expert's opinion is not admissible if he or she is merely “vouching for the truth of what [another expert] had told him.” Dura Auto. Sys., 285 F.3d at 613 (quoting In re James Wilson Assocs., 965 F.2d 160, 173 (7th Cir. 1992)). “A scientist, however well-credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different specialty. That would not be responsible science.” Id. at 613.

Thus, while Rule 703 does not preclude an expert in a technical field from “bas[ing] an opinion in part on what a different expert believes on the basis of expert knowledge not possessed by the first expert,” a testifying expert may not rely on other experts' opinions when “the soundness of the underlying expert judgment is in issue.” Id. at 613. For example, if the testifying expert based his or her conclusions on a study from another discipline and the study raises questions that only an expert in the study's field could answer, then an expert from that field would need to testify; the questionable study could not hide behind the testifying expert. Id. at 614.

Conclusion

Circling back to Part One of this article, the trial bar's doubts and disagreements about the effectiveness of motions under FRE 702 ought to be alleviated by the recognition that well-crafted arguments can and will succeed.

*****
John L. Tate is a Fellow of the American College of Trial Lawyers and a member of the southeastern law firm Stites & Harbison PLLC.