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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3 Responses to “Daubert Challenges Up 250%”
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Having been through at least a 150 Daubert or state equivalent challenges in the last almost twenty years, I find the PWC report percentages implausible and having also issued declarations and affidavits in support of motions to exclude certain testimony of opposing experts, I find the PWC study percentages to be extremely misleading. Most rulings on Daubert challenges are denials of such challenges, but they are not issued as published opinons and not identified or reported or published. Rather, most Daubert, and state equivalent rulings, are in the form of bench rulings (in transcripts) or minute orders at trial or just prior to trial. Sometimes the defendants raise a Daubert issue and the issue is simply denied by implication in a written opinion denying a summary judgment motion or granting a motion, like class certification. Additionally, defendants, especially in the large class action cases, tend to settle before the opinions are written.
That being said, I can confirm that Daubert rulings are increasingly troubling in that: (i) the courts are not fully applying the Daubert factors as set out by the Supreme Court; (ii) are not holding extensive Daubert hearings before ruling to grant them; or (iii) are, in some instances, plainly using Daubert as a stronger way to pre-try the case and grant summary judgment in a manner that will discourage an appeal or make it more difficult to over-turn the case on appeal. In fact, there are many times when a motion in limine based on Daubert and Kumho Tire is granted but the expert can cite to published peer-reviewed support for the methods, the methodology is a generally accepted and long-established practice, and/or the analysis is testable and tested such that the matter is really more properly reserved for cross-examination and rebuttal. Also troubling is the tendency of courts to selectively cite and discuss the materials submitted in a manner that is misleading, including citing one set of cases or one set of academic articles and then ignoring or omitting to mention a greater body of contrary decisions or contrary academic articles. What this means is that widely accepted/generally accepted expert practices and academic methods commonly used by experts even five or ten years ago in some areas of the law are being rejected and the bar is being raised in some courts so high no one could ever meet it.
Ever since a colleague of mine was challenged in a Texas court under that state’s duPont/Daubert ruling adopting Federal rulings as applicable in Texas, I have devoted as much research time as I can afford to the matter of in limine challenges to expert evidence. I have concluded that the expert can make the rules work in one’s own favor by using them as a guideline for performing one’s work when writing reports and affidavits and in giving testimony. Systematically go down the various rules and requirements, having them organized so as to satisfy technical and scientific requisites at the same time. The two areas often, but not always, overlap.
The major testimonial problem the expert has is persuading the attorney/client to present the opinion and its foundational factors thoroughly and systematically. I have seen attorneys throw cases away because they did not wish “to waste time” on some essential element of expert evidence. It is vitally necessary to educate the judge as gatekeeper on the scientific and technical underpinnings of the expert’s practical work in the case. The underlying science gives the validity and the underlying technology gives the reliability. The observations give the ultimate reality and helpfulness of the opinion. If an attorney gets caught in the undesirable and disadvantageous position of having to defend essential expert evidence in a challenge without the presence of the expert, if at all possible find a way to file the expert’s affidavit.
The biggest problem with challenges seems to me to be twofold:
1. Opposing attorney knows quite well what your expert’s opinion and evidence is and knows perfectly well that it is correct. Thus to defeat your case the truth must be defeated, and defeating the source of the truth is the easiest way to defeat the truth.
2. An ambush is the best way to attack. The very worst reaction to an ambush is panic. Keep your wits about you no matter how morally repugnant and unexpected an attack is. Get your expert involved in your counter-attack if at all possible. When on the witness stand I have had the urge to yell out, Ask me!, when attorneys and the judge are debating a foundational question I can answer. At least ask leave to enquire of your expert when things begin to appear hopeless, hopefully well before then.
Respectfully submitted,
Marcel M.
I have been challenged on several cases as an expert witness on ERISA issues and counsel has prevailed on each challenge to keep my testimony in play. It is my perception the challenges are part of the strategy to remove an experts testimony that is detrimental to their opposing counsel. The fact that a court would rule to keep an experts testimony in play is, in my opinion, an indication that the court views the expert as a qualified expert. I would think an attorney hiring an expert witness would prefer an expert that has been challenged and successfully prevailed.