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Volume 19, Number 7
October/November 2002

Experts: A Little Daubert'll Do Ya

By Andrew C. Simpson

You are preparing for a will contest-or perhaps a child custody hearing or simple slip and fall case-when your oppo- nent files a motion to exclude your expert on Daubert grounds. You sigh with irritation and put together a simple opposition; after all, Daubert is only for toxic tort cases, right?
Wrong! Do not make the mistake of thinking that Daubert applies only to limited categories of expert witnesses. The December 1, 2000, amendments to Rules 701 and 702 of the Federal Rules of Evidence (FRE) and a majority of state jurisdictions are following Daubert in one form or another. The essence of Daubert is that methods used by an expert to reach a conclusion must be reliable. And it is likely that Daubert scrutiny will be applied to any expert, even so-called lay experts such as treating physicians, if they offer opinions rather than simply recount the nature of the treatment.
Under the December 2000 amendments to the FRE, a treating physician can testify as to symptoms observed [facts] but cannot testify that those symptoms mean the patient suffered from a particular disease [opinion based upon specialized knowledge] if the opinion is unreliable. This does not mean that an expert must reach the correct result; rather, it requires that the expert must have used reliable methods to get to that result.
Daubert has changed the nature of litigation across the country, and if you do not consider how Daubert affects your case early in the process, you do a disservice to your client and could even be left without an expert at trial.

Picking Your Expert
All lawyers want an expert who will advance our client's position; but the Daubert era means being especially wary of the expert who "pushes the envelope." You are not doing your client any favors if your expert invites a Daubert challenge from your opponent; even if you defeat the challenge, your client will have incurred substantial additional expense. And there are hidden costs as well: The Daubert hearing can expose your expert to additional questioning (beyond her deposition), and she may be forced to disclose portions of trial strategy you had hoped to save for trial. If your expert is not following established methodology in her field; or if her conclusions seem a "stretch" given the data, consider whether you have the right expert for your case. As a general rule, the softer the science, the more important that your expert be well qualified and present a middle-of-the-road opinion.
Also consider whether your opponent's expert is likely to require you to initiate a Daubert challenge. If so, your expert will need to testify at the Daubert hearing that the opponent's methodology is flawed or unreliable. Many experts are uncomfortable rendering an opinion that criticizes a colleague, even though they are willing to offer contrary opinions. It is one thing to say, "I respectfully disagree with his conclusion," but another to say, "He did not use proper procedures to reach her conclusion." Gauge your expert's comfort level and consider switching if your first choice cannot comfortably criticize the opposing expert.

Assessing Your Opponent's Expert
The most important thing you can do to assess your opponent's expert is to ensure you know the expertise behind his testimony better than your expert does. This is not as hard as it sounds because you must become an expert on only a very narrow area rather than the entire field. For example, if a medical doctor testifies that a herniated disc at L4-L5 was caused by an accident, you don't need to know anything about the human heart. All you need is a good understanding of the spine at L4-L5 and the methodology doctors use to determine the cause of a herniated disc. Your expert can help you learn the things you need to know to understand whether the opposing expert is using reliable techniques or blowing smoke.

Practical Pointers

o Daubert makes it more important than ever that you depose your opponent's expert, despite your client's desire to keep expenses down. If you're going to successfully challenge the expert on Daubert grounds, you need to lock the expert into his testimony and fully understand his opinion before you file the motion.

o The proponent of the expert bears the burden of proving reliability. In addition to the obvious ramifications of the burden of proof, this also means that the proponent of the expert goes first and gets rebuttal at the Daubert hearing, even though the opponent brought the motion.

o One of the best resources for understanding technical testimony is the Federal Judicial Center's Reference Manual on Scientific Evidence, 2d ed. (2000), available free online at www.fjc.gov (it's a huge file, but you can download individual chapters) or from several publishers, $20.

o Even simple things can keep an expert out on Daubert grounds. Beware experts who received selective information through the attorney; have crossd the line into advocacy (they may fail to make the cut1); offer mistaken opinions or pick only the facts that support their theories2; or simply do not have sufficient facts to reach their conclusions.3

o The expert's opinion of her own opinion-that it is reliable and follows accepted methodology-probably is not enough to withstand a Daubert challenge in the absence of a supporting authority like scientific literature.4 The same is true of an expert's claim that the opinion is based upon personal experience, without other support.5 Finally, conclusory opinions may be excluded on Daubert grounds.6
The pros and cons about the adoption of Daubert have been debated in other circles. The fact is that Daubert is the law in an increasing number of jurisdictions and you cannot afford to ignore it. It is a valuable tool for addressing experts who go "too far," but it can be a trap for the practitioner who is unprepared.

Notes
1. Conde v. Velsicol Chemical Corp., 804 F. Supp. 972 (S.D. Ohio 1992).
2. De Jager Construction, Inc. v. Schleininger, 938 F. Supp. 446 (W.D. Mich. 1996).
3. Nelson v. Tennessee Gas Pipeline Co., 1998 WL 1297690 (W.D. Tenn. 1998).
4. Tanner v. Westbrook, 1999 WL 246712 (5th Cir. 1999); In re Conrail Toxic Tort FELA Litigation, 1998 WL 465897 (W.D. Pa. 1998).
5. Rutigliano v. Valley Business Forms, 929 F. Supp. 779 (D.N.J. 1996) a'ffd, 118 F.3d 1577 (3d Cir. 1997)
6. Hamilton v. Emerson Electric Co., 2001 WL 228059 (M.D. Pa. 2001).

Andrew C. Simpson is a lawyer in Christiansted, Virgin Islands.