PricewaterhouseCoopers (PwC) publishes an annual study that analyzes Daubert challenges and how they are used: “Daubert Challenges to Financial Experts: An 11-year study of trends and outcomes.” The data is staggering. Since Kumho Tire, the number of challenges to all types of expert witnesses has increased dramatically, with a total of 253 challenges in 2000 and 879 in 2010; a 248% increase!
The PwC study clearly exhibits that Daubert challenges to experts are now a regular part of litigation. Clearly, there is enough data to indicate a trend. It must be noted that not all 879 challenges were successful. A total of 431 experts were excluded in whole or in part in 2010 (up from 305 in 2008 and 389 in 2009). However, that is a 49% success rate.
Are Daubert Challenges the New Summary Judgment?
Let’s dive a bit deeper into the question; a study conducted by the Federal Judicial Center clearly demonstrated that summary judgment motions are used far more by defendants than plaintiffs. The PwC study demonstrates that the plaintiff’s expert is challenged two to three times more frequently than the defendant’s expert. Daubert challenges and summary judgment motions seem to closely parallel each other.
How Do You Beat the Challenge?
If you haven’t already, know that sooner or later you will be faced with a Daubert challenge, the foundation of which is most likely being formed during discovery.
Submitting experts who are qualified but cannot survive in litigation may be considered mismanagement. Make sure you fully vet your expert candidates by checking to see that they have recognized subject-matter credentials, as well as the ability to testify.
Ask the questions that need to be asked: Has the expert candidate testified before? Be careful, an expert that spends the bulk of his time testifying, otherwise known as a “professional witness,” can come under attack for lack of credibility. Look for balance: An expert that consistently testifies only for the defendant or the plaintiff can be perceived as lacking objectivity. Does she also continue to work in her field of expertise? Most importantly, has the expert candidate ever been excluded?
Work to thoroughly understand Daubert and Kumho Tire and the criteria the courts refer to for the admissibility of expert testimony, including the requirement that the expert demonstrates that his/her methodology and reasoning involve scientific or specialized knowledge and can be applied to the facts of the case.
Tell us: How frequently have you been faced with Daubert challenges?