Consider Daubert When Selecting Experts

• Author: Jim Wren
• Pages: 215-234

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7. Consider

Daubert

Chapter 7

Consider Daubert When

Selecting Experts

I. Anticipate Daubert Objections

A. General Points

§7:01 The Trial Judge Is the Gatekeeper

§7:02 Evaluate Experts for Daubert Challenges

§7:03 Use Interrogatories to Discover Objections

§7:04 Manage the Coordination of Expert Testimony

B. Relevance Objections

§7:10 The Opinion Must Help the Jury

§7:11 The Probative Value Is Outweighed by Prejudice

C. Reliability Objections

§7:20 The Expert Is Not Sufficiently Qualified

§7:21 The Methodology Is Not Reliable

§7:22 There Is an Analytical Gap Between Facts and Opinion

§7:23 There Is an Inadequate Factual Foundation

§7:24 The Facts Are Not of a Type Upon Which Experts Reasonably

Rely

II. Selecting Specific Experts

A. General Points

§7:30 Credentials and Qualification Requirements Vary

B. Mental Health Professionals

§7:40 Psychiatrists

§7:41 Clinical Psychologists

§7:42 Psychiatric Social Workers

§7:43 Marriage and Family Counselors

§7:44 Other Counselors and Clinicians

C. Other Experts

§7:50 Life Care Planners

§7:51 Vocational Experts

§7:52 Economists

§7:53 Accountants

§7:54 Business Valuation Experts

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§7:01 Proving Damages to the Jury

178

7. Consider

Daubert

I. Anticipate Daubert Objections

A. General Points

§7:01 The Trial Judge Is the Gatekeeper

In a large percentage of damages cases, damages presentations require experts. That, in

turn, places a premium on anticipating objections and motions to exclude expert testimony.

The stakes are high.

The United States Supreme Court has held that, in federal courts, trial judges act as

gatekeepers with regard to expert opinions. They are charged with keeping irrelevant and

unreliable opinions out of the courtroom. [Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).]

Furthermore, appellate courts may review the record and the decision of the trial court

to admit the expert testimony. They may render against a plaintiff rather than reversing and

remanding if the appellate court decides that expert testimony on which a verdict depends

was erroneously admitted. [Weisgram v. Marley Co., 528 U.S. 440, 120 S.Ct. 1011 (2000)

(reasoning that plaintiffs presumably have put forward the only evidence available and

would not have been able to shore up their cases by other means had they known their expert

testimony would be found inadmissible).]

§7:02 Evaluate Experts for Daubert Challenges

Daubert principles are now applied by many state courts as well, so evaluating a poten-

tial expert witness in terms of acceptability under Daubert is critical in these jurisdictions.

It is a waste at best and a disaster at worst to select damages experts who will not survive

Daubert challenges.

Evaluate each potential expert through the eyes of your opponent. The defense will scru-

tinize every plaintiff expert for points of vulnerability.

Although sometimes experts are attacked as unqualified in general, it is far more com-

mon that the attack is directed to a specific aspect of the expert’s testimony. The broad

Daubert categories of relevance and reliability can be subdivided into specific factors that

provide more refined and predictable points of attack. [See, e.g., Harvey Brown, Eight Gates

for Expert Witnesses, 36 Hous. L. Rev. 743 (1999).]

Judges are often more willing to exclude specific opinions than to exclude the expert wit-

ness entirely, and yet the exclusion of a key opinion may be just as devastating as complete

exclusion of the witness.

There are various ways to categorize relevant factors, but the following breakdown cov-

ers the primary Daubert objections:

• Relevance

• The opinion is not relevant. [See §7:10.]

• The value is outweighed by unfair prejudice. [See §7:11.]

• Reliability

• The expert is not qualified. [See §7:20.]

• The method is not reliable. [See §7:21.]

• There is an analytical gap. [See §7:22.]

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