Are Daubert challenges really weeding out “junk science” and “pseudoscience” in the courtroom, or could it be that they are actually scaring off good, competent experts? Given the numbers alone, one can’t help but wonder.
Since the U.S. Supreme Court’s 1999 decision in Kumho Tire Co. v. Carmichael, which established that the criteria set forth in Daubert applied to other types of expert testimony – not just that of a scientific nature – the number of Daubert challenges has risen sharply. While some increase may not be too surprising – after all, the Kumho decision expanded the pool of experts subject to Daubert criteria – what has perhaps left experts and attorneys scratching their heads is the sheer increase in the number of challenges.
According to a PricewaterhouseCooper study, which looked at Daubert challenges post Kumho, the number of Daubert challenges to all expert witness types increased dramatically in the first decade of 2000. The study looked at federal courts and state courts utilizing Daubert and revealed that Daubert challenges to all types of experts have exploded – in the year 2000 the study noted 253 Daubert challenges, and that figure jumps to 879 in the year 2010 – amounting to an almost 250% increase. In fact, 2010 marked the year with the most Daubert challenges ever.
As if those figures aren’t daunting enough, 2010 showed a 49% success rate of Daubert challenges to expert witnesses of all types, either in whole or part. The good news, if there is any, is that the percentage of successful challenges remained fairly stable over the first decade of 2000.
The increase in Daubert challenges has occurred despite the fact that the number of filings, at least in federal court, has remained consistent over the same time period. For example, using information obtained from a website maintained by the Administrative Office of the U.S. Courts which tracked a 12 month period ending March 31, the year 2001 saw 254,523 total civil cases filed in U.S. District Courts, compared to 282,307 cases filed in 2010. Although a slight increase in filings from 2001 to 2010 is noted, it is hardly in keeping with the almost 250% increase in Daubert challenges measured using roughly the same time frame. U.S. Court of Appeals filings for that same time period were also fairly stable – in 2001 there were 56,067 cases filed as compared to 56,790 in 2010.
So what might all this mean?
Well, short of predicting the future, the huge increase in challenges alone makes it plausible that an expert witness retained for federal litigation or in a state that has adopted Daubert may at some point be dealing with a Daubert challenge.
How does coming face to face with a Daubert challenge affect an expert’s future usability?
Failing a Daubert challenge has the potential to be damaging to an expert. Whether a challenge is successful or not, once made, it’s on the record and at minimum throws up a yellow flag for the attorney.
That’s in part because a Daubert challenge goes to the very heart of the scientific methodology an expert uses to reach his or her conclusions – not to the actual conclusions reached – and therefore arguably has the greatest potential for lasting long-term harm. Even more troubling is the fact that sometimes an expert isn’t even aware that there was a challenge until well after the fact – after all, unlike the parties to an action, the expert witness has no true advocate or legal standing in the courtroom. He or she may not even find out about the challenge until after the case is settled or decided, and all the parties, attorneys, and other players in the courtroom have closed their briefcases and gone home.
There is room for argument that, rather than as a method of raising the bar for scientific reliability, Daubert is becoming a federal litigation rite of passage which may be subject to misuse, is scaring off experts, and is almost certainly increasing costs of litigation for everyone.
Convince us Daubert challenges are working – or tell us why they aren’t in the comments below. Would you utilize an expert previously challenged under Daubert? Why or why not?
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