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Mastering the Daubert challenge 

Discovery and depositions are complete. You have honed your narrative and rebuffed an unfavorable settlement. You have planned for nearly every contingency and are leaving nothing to chance. Jury selection begins tomorrow and your opening statement is well rehearsed. Then the unthinkable happens.

Opposing counsel presents a motion to exclude your expert on the basis that their opinions are not reliable or relevant, and the judge agrees. Without your expert laying their evidentiary foundation, your follow-up experts can't present their findings, and suddenly your entire case falls apart as you scramble to formulate a plan B. Not only can this happen, but I have been instrumental in making this scenario a reality. Don't take it personally, it's just business. Now let's rewind the clock so this never happens to you.

The Daubert challenge, which is codified as FRE 702, calls into question the scientific methodology and reasoning used by an expert, but not their actual opinions. This challenge can place your case at the mercy of your expert's underlying skills and their adherence to industry accepted practices.

A last minute discovery of expert errors, or a permissive jurisdiction, can allow the attorney to bypass the timely disclosure notification expectation for a Daubert challenge. Savvy attorneys can serve a motion to exclude the opposing expert pretrial, after the evidentiary submission deadline, prior to voir dire, or immediately before the expert is to take the stand. Judges are generally less tolerant of such motions in limine as the date of expert testimony approaches.

The least vulnerable expert opinions are those based in solid science, as they usually rest upon very firm precedents. The more complex the underlying science, the more dependent your case becomes upon an expert explaining their opinions to the jury. However, science cannot be stated in absolutes, and always carries some margin-of-error, no matter how small.

The Daubert challenge examines the data used by the expert, their assumptions and methods applied, and how their resulting opinions and error margins were derived. It will be easier to show good cause if the expert in question has misrepresented their qualifications relevant to their opinions.

This challenge isn't a perfect process, as it places the judge in the role of gatekeeper in subjects that they might not fully understand. The judge is deciding whether or not the expert's testimony meets the threshold for admissibility, and this is where some research can help support your burden of proof.

Research how the judge has previously ruled on Daubert to help you tailor your motion. If the judge has prior rulings that support your motion, be sure to cite them. If the expert previously passed or failed any Daubert challenges, those should be cited too.

When an expert relies upon files, documents, articles, lectures, or studies in the formation of their opinions, then it is expected that these items will be reputable, verifiable and referenced within that expert's report. This becomes critical when answering a Daubert challenge, as the expert's report will be at the argument's center, and you will need a firm understanding of each opinion's foundation and reasoning to form a strongly worded opposition. The expert may, or may not, be given the opportunity to provide an affidavit to defend the focus of the challenge.

If the challenge results in a hearing, the expert will need to testify regarding the relevancy and reliability of their opinions. It would be reasonable to assume that any expert who is unable to defend their opinions during the time permissive stage of report writing, may lack the capacity to do so under the intense pressure of a hearing. This is especially true when the expert realizes that their potential failure could permanently haunt their professional career.

Your expert should be able to clearly explain their reasoning, pertinent qualifications, adherence to industry standards and methodologies, and any relevant industry training that they applied in forming their opinions. You will be better prepared for potential challenges if you have previously asked your expert to describe any alternative accepted methodologies or reasoning that could be used by an opposing expert to come to a different opinion. This information will help you in developing your witness questions, preparing your expert to perform under cross, and delivering a cohesive narrative to the jury.

Due to the broad range of possible experts and areas of expertise, it is beyond the scope of this article to address all scenarios of data collection, computations, and margin-of-error calculations. Instead, let us focus on the expert's qualifications to perform their analysis in a forensically sound manner. We will do this by examining the expert's CV in three primary areas vulnerable to a challenge of their methodology and reasoning: Certification, training, and prior opinions.

Your case can fall apart when prior judges were permissive when allowing your expert to testify, but the current judge is a tougher gate keeper. An expert's CV should detail why they are a qualified as an expert in their field of practice. Unfortunately, it is shockingly easy for experts to be certified by diploma-mills that require little more than a credit card to qualify. Instead of assuming that everything is credible, each expert degree and certification should be verified.

If it isn't already listed in the expert's CV, get the full name of each license, degree or certification. You will also need the full name of the issuing agency, school or group, and the approximate date of issuance. These details are critical because some shady certifications and organizations are intentionally named similar to their more reputable counterpart.

A simple web search can provide a wealth of information, including whether the issuer has ceased operations, thus invalidating the certifications that they issued. Your expert is likely a respected member in their field with some familiarity of other industry colleagues. Unless your expert is protecting their own flawed CV, they can assist you in identifying any invalid entries in the opposing expert's CV.

At issue is whether the relevant credentials and certifications of each expert's CV were valid at the time of their opinions. Reliance upon expired qualifications can jeopardize even the strongest case. One notable example was when Merck's litigation {
In re Vioxx Products Liability Litigation 489 F.Supp2d 587, 591-92 (E.D. La. 2007)} victory was tossed because their expert misrepresented his credentials to the court and jury when he testified that he was board-certified, when in reality his industry certifications had expired.

Similarly, padding one's CV with significant sounding information can bolster the expert's status, while making content verification both confusing and cost prohibitive. As a result, even cases backed by clients with deep pockets can get ambushed by their expert. For example, a defendant in Jenkins v. Bell Helicopter Textron {
CV97000397 Arizona Superior Court in Cochise county (April 27, 2000)} was sanctioned $583,578.67 due to the errors in their expert's CV. The judge wrote "defendant Bell Helicopter knew or should have known of the falsity of its expert's credentials", and a motion for retrial was granted.

It only takes a little effort to assist the court in realizing that the opposing counsel's expert is unqualified, in error, and possibly worthy of sanctions. This not only benefits your case, but also improves the justice system by weeding out inadequate experts.

Nearly every expert requires continuing education courses to remain certified and qualified. As with all areas of education, some students will be engaged in the curriculum while others are watching the clock. Simply attending a conference that provides extensive course offerings is no assurance that the expert actually absorbed any knowledge while in attendance.

To complicate matters, some courses issue an attendance certificate to everyone, even when the student spent the entire class texting or standing in the hallway taking phone calls. I know of conferences that relied upon the honor system, and allowed the participants to claim attendance for any number of course offerings, regardless of whether the attendee ever showed up that day.

Lesser qualified experts pad their CV by listing numerous courses in an attempt to appear more impressive, even though they cannot substantiate any mastering of the course curriculums. This practice is hard to stop once started, because it looks suspicious when an expert suddenly halves the length of their CV.

A diligent attorney will turn this around by asking the opposing expert if they relied upon the training listed within their CV when forming their report opinions. They will likely answer "yes", which opens the door for the attorney to go line-by-line through the training while asking if they passed a test at the end of the course to demonstrate comprehension of the curriculum. If they frequently answer "no", then the attorney may have a path for a Daubert challenge since the expert cannot prove competence in the very training that they just claimed to have relied upon when forming their report opinions.

Just because a test was successfully passed, it does not ensure that the student substantively absorbed the material. It is possible that the test was taken by a third party, as occurred when a cat was certified by the apparently defunct ACFEI. Assurance of content competency requires some form of proctoring, peer review or practical examination. Such exams should be prominently denoted on the expert's CV. Once you have verified your expert's training, they can then assist you in assessing those on the opposing expert's CV.

Experts may have become educators by having published articles, submitted peer reviewed writings, or presented lectures. These items should be listed on the expert's CV, and can be a valuable resource for supporting or contradicting case opinions.

Experts may also belong to industry groups, which can be a potential source of self-training and scientific networking. This type of education is nearly impossible to substantiate, and being a group member offers little guidance as to the nature of an expert's participation beyond having met certain minimums.

Review the expert's groups that are relevant to both their specialty and opinions in your case. Give the greater weight to groups where peer review is required for membership, or where the expert has held a meaningful position of authority or involvement. Be cautious of groups that restrict their membership to a specific alumni, business or governmental branch, as membership qualifications may be irrelevant to supporting industry best practices.

The best experts enjoy testimony. They captivate and educate the jury while keeping their answers brief and on task. Unfortunately, some experts deviate off message in a desire to bask in jury attention, or they might ensure the need for their testimony by submitting a weak report. Whether craving attention or increased testimony income, such experts can harm your case when they can't support their findings, express opinions outside of their expertise, or deviate into opinions unrelated to your case. If the expert's report is comprehensive and self-supportive enough to minimize the need for testimony, then this should be the type of expert who would apply that same laser focus while testifying.

Your expert's CV should demonstrate ample relevant testimony experience, but an abnormally high frequency of testimony may indicate that the expert is driven by the wrong motives. Experts that brag about their testimony frequency may be sending you a warning regarding their true case motivation, and maybe you need to be listening. It is a simple check to ask the expert how many times they testified last year, and how many total cases they handled in that same time period. The lower the ratio, the more effective the expert will be at encouraging favorable settlements.

Another common practice is for experts to pad their CV by listing every court case they ever touched, even when they never wrote a report or testified in that matter. While such a list technically satisfies the Rule 26 requirement of "a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition", its real value may be in making the expert appear extremely experienced, while simultaneously overwhelming any attempt to research that expert's prior opinions.

If the expert's CV does not specify their involvement in each of the listed cases, then you are likely looking at a padded CV. As such, you can embarrass this expert in deposition or court by denoting each listed court case while asking, "Were you working for the defense or plaintiff in this case? Were you deposed? Did you testify? Which of your opinions in that matter helped you in forming your opinions in today's case?"

Being clueless about one's own court experience does not play well in front of a judge or jury. If the expert cannot remember involvement in their prior cases, then there may be prior contradicting opinions that they may not even recall. If the expert claims that none of their prior testimony is relevant to their current case opinions, then only their certifications and training can support their qualifications to form such opinions. If those certifications and training were already discredited by the process described within this article, then the opposing expert's own CV may disqualify their opinions in your case. This is, after all, the goal of the Daubert challenge.

If an expert's credentials, processes and conclusions are sound, they should be able to testify. After some vetting, you may be the only side to have any testifying experts, thus forcing the opposition to settle under very favorable terms.

by Doug Carner (January 2018)      Article awaiting publication.

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