OK, this time we thought for sure the Supreme Court would give us a decisive ruling on the extent to which a trial court must vet an expert witness under the Daubert standard prior to certification of a class action.
The Daubert standard requires that expert testimony be reliable in order to be admissible. But reliable is not the same as right, two recent federal circuit opinions remind us. The judge’s role is not to determine whether an expert’s testimony is correct, but only whether it is admissible, these opinions say.
You would expect a challenge to an expert witness to be made before trial, before the expert has the opportunity to testify. In an unusual case out of a federal court in Florida, however, the challenge came after the jury had rendered its verdict, in the plaintiff’s post-trial motion for an award of costs and attorneys’ fees.
Is a Daubert hearing a mere magical incantation, unnecessary to invoke as long as the trick is still performed?
Several Supreme Court justices seemed to suggest as much, as the court heard oral arguments Nov. 5 in Comcast Corp. v. Behrend, an antitrust case that presents the question of the extent to which a trial court must vet an expert witness under the Daubert standard prior to certification of a class action.
News reports over the summer carried four separate accounts of libel lawsuits brought by experts who contended that criticisms of them or their testimony were defamatory. These lawsuits are not just anomalies. Libel lawsuits by expert witnesses are surprisingly common, although their outcomes vary widely.
Every lawyer learns in law school that to be able to appeal an issue to a higher court, you must preserve it. No formaldehyde is needed for this, but what is required is that the lawyer clearly raise an objection at trial and get an express ruling from the trial judge.
Sounds easy enough. When objecting to an expert witness, however, a single objection may not suffice to preserve the issue for appeal.