Posted on: 8/3/2012
Tom Branigan, Tina Georgieva
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When the amendments to FRCP 26 became effective on December 1, 2010, significant changes to the rules for both retained testifying experts and non-retained testifying experts took hold. Non-testifying experts affected by these amendments, such as employees of a party or physicians, are witnesses who do not regularly provide expert testimony, but are qualified as experts because of their expertise in a given field. In summary, amended Rule 26 reduced production requirements related to experts, their underlying data and drafts; it created a class of "no report" experts; and protected draft reports from discovery. See FRCP 26. Despite the new restrictions on the type of expert-related discoverable information, the amendments do not change a trial court's gatekeeping responsibilities under Daubert. However, recent statistics indicate a decline in the total number of Daubert challenges filed since the effective date of the amendments.
While recent case law is helpful in understanding how courts are likely to interpret and apply the changes to Rule 26 related to experts, the effect of these changes on Daubert motion practice has yet to be seen. However, this much is clear: filing Daubert motions for every opposing expert, as a habitual practice, is not smart trial practice. Technical experts quite often are repeat operators. It is common for the same set of experts to appear repeatedly in certain areas of litigation, e.g., automotive, medical device and pharmaceutical product liability litigation. These technical experts are usually experienced "professional" witnesses, and because the standard for admitting their testimony is still relatively low, Daubert challenges fail often.
Recently published data on the success of Daubert challenges supports this view. This month, PriceWaterhouseCoopers issued its annual survey of challenges to financial expert witnesses under the Daubert standards. Daubert Challenges to Financial Experts: A yearly study of trends and outcomes, PriceWaterhouseCoopers, available at http://www.pwc.com/en_US/us/forensic-services/publications/assets/daubert-study-2011.pdf. This survey analyzed federal and state court written rulings, and included a review of 6,919 Daubert challenges to witnesses from all fields. Id. at 29. According to the survey, since Kumho Tire in 1999, the number of challenges has been steadily growing, resulting in a three and a half-fold total increase of challenges from 2000 to 2010. Id. at 6. Interestingly, the number of challenges in 2011 dropped from 879 in 2010 to 778. The number of expert exclusions also dropped from 431 in 2010 to 335 in 2011. Id. Despite the drop in overall challenges, the rate of exclusion was consistent with that of previous years – 43 percent of challenged expert testimony was excluded in whole or in part. Whether the decrease in total challenges is correlated to the 2010 amendments to Rule 26 is difficult to determine.
Nevertheless, survey data about expert challenges since 2000 indicates that only 45 per cent of challenges succeeded in either complete or partial exclusion. This low success rate has remained relatively consistent over the past 11 years. Id. at 6. A closer look at the data for 2011 reveals that complete exclusion of expert testimony occurred only 25 per cent of the time, and partial exclusion – only 18 per cent of the time. Id. at 31. Moreover, if a Daubert decision is appealed, statistics from circuit court decisions indicate that the district courts' rulings on Daubert motions are affirmed 87 per cent of the time. Peter Nordberg, Daubert in the Circuits, available at http://www.daubertontheweb.com/circuits.htm. Specifically, in 2011, the appellate courts affirmed the lower courts' rulings in 85 per cent of the cases. Daubert Challenges to Financial Experts, at 16. In other words, there is essentially no help on appeal if a Daubert challenge is denied at the trial court level.
The obvious consequence of losing a Daubert challenge is that the opposing expert remains in the case with his opinions intact. But what are the less obvious consequences? Given the statistical odds of losing, too often the challenge does nothing more than educate opposing counsel and his expert of your strongest cross exam points. This free preview of your cross exam outline often provides opposing counsel and his expert with the best means to improve their scientific method and opinions well before trial, all at the expense of the client. Therefore, a very detailed Daubert motion that does not succeed is not harmless. This point becomes even more significant with the new Rule 26 in place. As amended, Rule 26 now protects from discovery drafts of expert reports and most communications between lawyers and experts are often some of the most valuable information available to support a Daubert challenge. Given the relatively low success rate of Daubert motions, as indicated in the survey cited above, and the consequences that flow from losing, counsel should be very cautious about over "Dauberting."
Picking your battles and doing your homework may help you beat the odds. It goes without saying that one way to avoid losing a Daubert Challenge is to not raise one. Objectively assessing the chances of success on the motion before that assigned district judge will increase your chances of success. In addition, having information on the expert that you plan to challenge is key. You will lose if you challenge experts who have survived multiple challenges over the same issues.
There are numerous resources that contain information about Daubert challenges to experts and judges' dispositions to grant such Daubert challenges, such as the Westlaw Expert Center, or the LexisNexis Daubert Tracker. Through these resources, one can search experts by name and view expert's CVs, Daubert challenges, exclusions, verdicts and expert reports. Similarly, one may search for Daubert challenges before a particular judge.
Amended Rule 26 now allows experts to create draft reports without fear that they will be discovered by an opposing party. It also grants lawyers the freedom to communicate and interact with their experts in the opinion development process in ways that will often be beyond the reach of discovery. Although these are positive changes that reflect the reality of practice, what effect, if any, these changes will have on Daubert challenges remains to be seen.
Tom Branigan, a senior partner at Bowman and Brooke, has spent his entire legal career in the courtroom engaged in trials and litigation for a variety of clients and industries including auto manufacturers, financial institutions, fast food franchisors and chemical manufacturers. With over 24 years of experience, his practice is focused on the defense of complex product liability matters involving catastrophic exposure and complex commercial disputes nationwide. He has tried cases to verdict in both state and federal courts from coast to coast for some of the world's largest publicly traded companies. Outside of the courtroom, Tom is a well-known speaker and author on product liability and automotive litigation topics.
Tina Georgieva is an Associate at Bowman and Brooke who focuses her practice primarily on product liability, commercial litigation and motor vehicle warranty. She recently received her joint J.D. degree from the University of Windsor and University of Detroit Mercy, allowing her to practice law in both Michigan and Ontario, Canada. Prior to joining Bowman and Brooke, Tina served as a law clerk at a criminal defense litigation firm in Toronto, Canada