General Understanding Is Enough for Admissibility under Daubert

By Annie Dike, Esq.

“I can see Russia from my house.” We all remember this line. Did anyone think that made Palin an expert on foreign policy? Likely not. But, how much experience is really needed? According to the Second Circuit, a mere general understanding of a field of study, without practical experience, can be enough. You simply have to determine whether the expert’s qualifications fall within a range of “closely related” experience.

In a recent securities case before the Second Circuit, the SEC, as plaintiff, sought to prove the defendants shorted a securities fund during a restricted period and walked away with $1.37 million in unlawful profits. Their expert, Guy Erb—under attack by way of a Daubert motion—had twenty-five years of experience in international finance, a dozen years of experience in the securities industry, and almost ten years at Goldman Sachs in both New York and Mexico. Sounds impressive. Yet, the defendants claimed his qualifications were not sufficient because Erb’s experience was limited to only a handful of securities underwritings, none of which was Canadian. Does it have to be, or are the defendants merely quibbling? According to the Second Circuit—which admittedly “liberally construes expert qualifications”—it was the latter. The takeaway here (in the Second Circuit at least): As long as the expert has experiential qualifications in “a general field closely related” to the subject matter in question, the court will not exclude the testimony on the ground that the witness lacks expertise in the specialized areas in question. In other words, maybe it’s okay that Palin has never engaged directly in foreign policy negotiations with Russia. As long as she has done it with some other country—Mexico perhaps—she’s sufficiently qualified.

The defendants also attacked Erb on grounds of unreliability, claiming three concerns. First, his opinion impermissibly equated the term “underwritten” with “firm commitment.” They also stated it was not sufficiently supported by secondary sources and they argued his opinion was wrong because it contradicted some of their witness statements. When is that not the case? An expert is brought in to view the entirety of the case—which is always chock full of contradictory accounts—and attempt to ascertain the most reasonable version of the event based on science and reliable methodologies. According to the Second Circuit, this does not make him “right,” per se, but it does make him persuasive which, in turn, makes his opinion admissible. The court called this falling within “a range where experts might reasonably differ.” And if the expert’s opinion falls within this range, any attack on it thereafter goes to its weight, not its admissibility. This will include the type of “shaky but reliable” evidence we have reported on before. In fact, the only scenario where the Second Circuit claims they will exclude an expert opinion is if it is “so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison.” In other words, trying to claim a pig with lipstick is no longer a pig. If a layman can see through it, it’s not getting through. But if an expert can “reasonably differ,” the Second Circuit says you’ve got a pass.

We are always on the lookout for interesting Daubert nuances. All Circuits differ, and it is hard to say—district to district or judge to judge—what may reek of bovine, on the one hand, and what may seem reliable on the other. What do you think of this liberal Second Circuit Daubert standard, i.e., anything that falls within the “closely related” or “reasonably differ” range comes in? Let us know in a comment below.

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As a former trial and litigation attorney, Annie Dike has a keen eye for expert evidentiary issues and a clear voice for practical solutions.  Annie is a published author of both fiction, non-fiction, and a comprehensive legal practitioner's guide to hourly billing published by LexisNexis. Annie graduated from the University of Alabama School of Law cum laude.  While in law school, she served as Vice President of both the Bench and Bar Legal Honor Society and the Farrah Law Society and was a member of the Alabama Trial Advocacy Competition Team as well as Lead Articles Editor of The Journal of the Legal Profession.  Ms. Dike has published articles in The Alabama Lawyer and DRI MedLaw Update and has spoken on numerous legal issues at various conferences nationwide.

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