Daubert and Rule 702: Effectively Presenting and Challenging Experts in Federal Court

Daubert and Rule 702: Effectively Presenting and Challenging Experts in Federal Court January 26, 2010 Moderator: Nicole Skarstad American Lawyer Media nskarstad@alm.com

John L. Tate, Panelist A member of Stites & Harbison PLLC and a Fellow of the American College of Trial Lawyers, John L. Tate engages in a national and regional litigation practice that focuses on defending complex product liability lawsuits. Based in Louisville, Ky., he has tried product liability cases to jury verdict in eight states, but his trial experience also includes admiralty claims, construction and insurance disputes, intellectual property, and a variety of personal injury matters. Mr. Tate has been listed in The Best Lawyers in America since 1995 and in 2007 Kentucky Super Lawyers magazine listed him as one of the Top 50 Lawyers in Kentucky. In addition to his trial practice, Mr. Tate is an active appellate lawyer and supplies risk management advice to manufacturers facing significant product liability risks.

Overview The lawyer who hopes to demonstrate that the other side s opinion testimony is inadmissible must be prepared to defend his or her own. Challenging admissibility of opinion testimony requires familiarity with the witness s field and thorough knowledge of FRE 702, FRCP 26, and Daubert principles. Stites & Harbison PLLC 3

Presentation in four parts finding, recruiting, and hiring experts developing an effective and defensible report challenging opposing Rule 702 witnesses conducting Daubert hearings Stites & Harbison PLLC 4

At the end of each part summary of key points resources or recommended reading questions Stites & Harbison PLLC 5

Historical context pre-1993 FRCP Galileo s Revenge: Junk Science in the Courtroom (1993) Daubert v. Merrell Dow, 509 U.S. 579 (1993) Kumho Tire v. Carmichael, 526 U.S. 137 (1999) post-2000 FRCP 26 post-2000 FRE 702 Stites & Harbison PLLC 6

Part One: Finding, Recruiting, Hiring Experts Stites & Harbison PLLC 7

Part One: Finding, Recruiting, Hiring Experts Four essential steps: finding the right expertise in the right person clearing the candidate for participation convincing him or her to be involved testing the witness s knowledge and skills Stites & Harbison PLLC 8

Part One: Finding, Recruiting, and Hiring Experts Keys: Make a well-informed choice. Sources: Lexis/Nexis research Questions: Technical Advisory Service (tasanet) numerous on-line directories, e.g., expertlaw.com, witnessdirectory.com, lawinfo.com, seakexperts.com Stites & Harbison PLLC 9

Part Two: Effective and Defensible Reports Stites & Harbison PLLC 10

Part Two: Effective and Defensible Reports With one eye on the mandatory sanctions in FRCP 37 for failing to make required disclosures, counsel must furnish the court and opposing parties with a written report signed and prepared by the witness containing all the topics and opinions to which the witness expects to testify. Stites & Harbison PLLC 11

Part Two: Effective and Defensible Reports To help insure effective and defensible reports: choose and supply relevant materials discuss the case with the witness play the devil s advocate meet the mandate of FRCP 26(a)(2)(B) Stites & Harbison PLLC 12

Part Two: Effective and Defensible Reports Contents of FRCP 26(a)(2)(B) report: 1. A complete statement of all opinions to be expressed and the basis and reasons for them; 2. the data or other information considered by the witness in forming his opinions; 3. any exhibits that will be used to summarize or support them; Stites & Harbison PLLC 13

Part Two: Effective and Defensible Reports Content of FRCP 26(a)(2)(B) report--con t: 4. the witness s qualifications, including a list of all publications authored in the previous ten years; 5. a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and 6. a statement of the compensation to be paid for the study and testimony in the case. Stites & Harbison PLLC 14

Part Two: Effective and Defensible Reports Keys: Strict adherence to Rule 26 Valid basis and reasons Rule changes protecting work product Sources: A Litigator s Guide to Expert Witnesses by Cecil C. Kuhne III Questions: The Litigation Manual: Pretrial (ABA) Stites & Harbison PLLC 15

Part Three: Challenging Opposing Witnesses Stites & Harbison PLLC 16

Part Three: Challenging Opposing Witnesses For a well-executed challenge: educate yourself in the witness s field analyze the opposing witness s report make a rational deposition decision prepare a motion consistent with FRCP 26, FRE 702, and Daubert Stites & Harbison PLLC 17

Part Three: Challenging Opposing Witnesses Education in the witness s field requires reading standard texts, looking for relevant articles, developing a list of basic principles, and learning the right vocabulary. Stites & Harbison PLLC 18

Part Three: Challenging Opposing Witnesses Analyze an opposing witness s report for form and content under FRCP 26 and for the data and methodology required by FRE 702 and Daubert principles. Stites & Harbison PLLC 19

Part Three: Challenging Opposing Witnesses A form and content review assesses the report against the requirements of FRCP 26(a)(2)(B) with the knowledge that FRCP 37(c)(1) requires absolute compliance. Only harmless or substantially justified deficiencies should escape sanctions. Stites & Harbison PLLC 20

Part Three: Challenging Opposing Witnesses Keep in mind that Daubert s focus on methodology makes the content of an expert report a critical component. Rule 26 not only requires the basis and reasons for a witness s opinions but also a report that sets forth the substance of the direct examination. [Advisory Committee Notes] Stites & Harbison PLLC 21

Part Three: Challenging Opposing Witnesses Data and methodology review under Rule 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Stites & Harbison PLLC 22

Part Three: Challenging Opposing Witnesses Daubert v. Merrell Dow Pharmaceuticals,Inc. 509 U.S. 579 (1993) 1. testability 2. peer review 3. potential error rate 4. general acceptance 5. prepared solely for litigation Stites & Harbison PLLC 23

Part Three: Challenging Opposing Witnesses Reproducibility is a useful approach to effectively analyzing the data and methodology in an opposing report. Stites & Harbison PLLC 24

Part Three: Challenging Opposing Witnesses Tools for analyzing reproducibility include: logic and reasoning formulas standards manuals and textbooks common sense Stites & Harbison PLLC 25

Part Three: Challenging Opposing Witnesses Do not take an opposing expert s deposition just because you can. Ask yourself: does the report comply with Rule 26 requirements? are the data and information sufficient? is the methodology apparent? is the witness an unknown personality? Stites & Harbison PLLC 26

Part Three: Challenging Opposing Witnesses Four ingredients of a motion to exclude testimony under FRE 702 and Daubert principles : present the case intelligently characterize the contested testimony explain the principles supporting exclusion furnish reassuring legal authorities Stites & Harbison PLLC 27

Part Three: Challenging Opposing Witnesses The admissibility of expert opinions under FRE 702 is ultimately a question of fit and reliability. Stites & Harbison PLLC 28

Part Three: Challenging Opposing Witnesses Keys: Relevant knowledge Thorough, multi-faceted analysis Picking the right fight Sources: Reference Manual on Scientific Evidence (2d ed., Federal Judicial Center) Attacking Adverse Experts by Stephen Easton Questions: Stites & Harbison PLLC 29

Part Four: Conducting Daubert Hearings Stites & Harbison PLLC 30

Part Four: Conducting Daubert Hearings Daubert hearings under FRE 104 vary from judge to judge and jurisdiction to jurisdiction. Courts can choose either evidentiary or non-evidentiary hearings. Stites & Harbison PLLC 31

Part Four: Conducting Daubert Hearings Keys to an effective hearing: establish the ground rules in advance or at the beginning of the hearing stick to the criteria for exclusion focus on fit and reliability Stites & Harbison PLLC 32

Part Four: Conducting Daubert Hearings Cross-examination of a challenged witness: not a full cross brick by brick technique based on analysis of report and/or deposition testimony focus on the shortcomings under FRE 702 Stites & Harbison PLLC 33

Part Four: Conducting Daubert Hearings Keys: Flexibility in hearing format Focus on exclusion criteria Sources: Scientific Evidence Review: Admissibility and Use of Expert Evidence in the Courtroom (ABA) Expert Witnesses by Faust Rossi Questions: Stites & Harbison PLLC 34

Daubert and Rule 702 Effectively Presenting and Challenging Experts in Federal Court Thank You Stites & Harbison PLLC 35

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