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Survey Says: Tips On Getting Over the Daubert Hurdle
Surveys can provide useful evidence in litigation if they are conducted by a qualified expert employing reliable methods that survive a Daubert challenge. To be admissible, expert testimony must be "relevant to the task at hand" and rest on a "reliable foundation" (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)). In this article, we draw on our review of over 300 U.S. court rulings in cases involving surveys, including over 150 Daubert motions, we provide some suggestions for getting survey evidence admitted for consideration in court. Our recommendations fall under two broad categories: relevance and reliability.
To Be Relevant, Make Sure You're Addressing the Right Questions
According to the Federal Rules of Evidence, "[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the evidence." (FRE 401.) From this rule, a few guidelines for survey admission follow.
Don't Muddy the Waters
Surveys may be deemed irrelevant and excluded if they introduce unrelated issues or do not directly address critical at-issue facts of the litigation. In Wing Enterprises v. Tricam Industries, the plaintiff's survey was excluded because the survey tested the importance of two industry safety standards (OSHA and ANSI) together when only one standard (ANSI) was at issue. The inclusion of the standard that was not at issue confounded the results and rendered the survey inadmissible.
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