August 01, 2014

In 1993, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. and held that, in order to be admitted into evidence, expert testimony must be demonstrably reliable.  Lawyers now routinely file pretrial motions to preclude the other side’s expert from testifying. 

 At a minimum, mounting an effective Daubert challenge should include consideration of the following:

• Does your trial judge have an established Daubert record that may provide insight as to how he may rule?

• If your motion is denied, how much have you “educated” the other side on the issues and your likely trial cross examination?

• Given that Daubert motions often result in the need for extensive hearings, how much will making the motion cost and, if it is granted, will it be case dispositive?

If you elect to file a Daubert challenge, there are several basic steps which can play an important role in its potential success:

• Given that the expert will have provided you with a report that will, among other things, include a list of his publications and prior case involvement, scour his record for potentially conflicting prior opinions or evidence of bias.

• Carefully examine the facts/data that the expert has relied upon, and contrast them with the facts/data present in your own case.

• Since an expert’s opinion may be multi-faceted, verify that the he has the qualifications necessary to back up each and every aspect of his opinion.

• Take the expert’s deposition in advance of the challenge and focus on the foundation/rationale for each of his opinions.

• Consider retaining your own expert for the purpose of challenging your opponent’s expert’s methodology and/or the reliability of his data.

Finally, even if your pretrial Daubert challenge is unsuccessful, always remember to guard your appellate record by renewing your objection at trial, and at the close of the evidence.