BGBC: How to avoid, overcome a Daubert challenge

Pollom

By Samuel M. Pollom

Any seasoned trial attorney who has worked with expert witnesses in litigation will get instant heartburn at learning that opposing counsel has raised a Daubert challenge. Why? Because that attorney has probably spent considerable time and money with the expert for the sole purpose of shoring up his or her client’s position in the case. A Daubert challenge now threatens to poke holes in the expert’s opinion, or, worse, disallow it completely, and thereby weaken his or her client’s chance of success at trial. Daubert is a direct challenge to the methodology used by the expert when formulating his or her opinion. But do Daubert challenges always derail expert opinions and testimony, or can attorneys proactively take steps to deal with them?

The trial court judge is tasked with being the “gatekeeper” with respect to evidence and its admissibility. The standards by which a trial court judge will analyze an expert witness come from the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court set guidelines for expert testimony to be admissible under the Federal Rules of Evidence Rule 702. Rule 702 basically states that expert witnesses may testify in the form of an opinion if:

a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact (judge or jury) to understand the evidence or to determine a fact in issue;

b. the testimony is based on sufficient facts or data;

c. the testimony is the product of reliable principles and methods; and

d. the expert has reliably applied the principles and methods to the facts of the case.

When a Daubert motion is raised, the validity and reliability of your expert’s testimony is being challenged. Opposing counsel wishes to discredit your expert, and you wish to keep your expert and his or her testimony intact. To exhaust an already overused sports analogy, the best defense is a good offense. This applies not only to football, but also to Daubert challenges. Proper preparation and strategy can help attorneys defeat or even avoid Daubert challenges.

When choosing an expert, remember the potential for a Daubert challenge. Look for experts whose experience and knowledge include preparing for and overcoming such challenges. The trial judge will be analyzing your expert’s methodology using four factors:

1. can the methodology be tested;

2. is the methodology subject to peer review;

3. what are the rates of error with the methodology; and

4. what is its acceptance within the specific scientific community that utilizes the methodology.

Most experts know these factors, but it’s good practice to review them with the expert to make sure he or she is preparing an opinion with them in mind.

Be sure to choose an expert who has the appropriate credentials and experience within his or her field of expertise. For financial experts, seek out credentials such as Certified in Financial Forensics (“CFF”), Certified Fraud Examiner (“CFE”), and Accredited in Business Valuations (“ABV”). Remember that the first criterion under Rule 702 is that your expert have the specific knowledge necessary to assist the trier of fact in understanding the evidence. Know the expert’s credentials when you hire him or her. Highlight your expert’s qualifications to the court. Submit a detailed curriculum vitae (“CV”). Be familiar with their methodologies and their ability to support them with testing and peer review. Your expert’s opinion must be more than subjective belief or mere speculation. Be ready and able to clearly describe all of this in a way the judge will comprehend.

Make sure your expert’s testimony remains within the scope of his or her expertise. Avoid potential issues by making sure the expert’s opinions and reports are narrow in scope and well within the boundaries of the his or her area of expertise. The expert should fully understand the fact or issue that his or her testimony is being used to prove (or disprove). Avoid opining on matters outside the expert’s field of expertise — low-hanging fruit in a Daubert challenge.

Perhaps the most important strategy to warding off a Daubert challenge is being able to demonstrate the reliability of your expert’s testimony. Be ready to show the court that your expert’s opinion was derived from sufficient and relevant data, and that his or her methodologies are reliable and can be reproduced by independent testing. Peer-reviewed articles written by your expert lend enormous credibility to the effectiveness of his or her methodologies.

During a Daubert hearing, the trial judge will not be ruling on the weight of the expert’s testimony with respect to the merits of the case. That’s for the jury to decide. The judge will only be ruling on whether your expert’s testimony meets the threshold for admissibility under Rule 702, as guided by the standards in Daubert. If the expert’s credentials are good, his or her methodology is sound, and the methodology has been properly applied to the facts and circumstances of the case, the expert testimony should be admitted.•

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• Samuel M. Pollom, JD, CPA, is with BGBC Partners LLP — Litigation, Forensic and Business Valuation. Contact BGBC at 317-633-4700 or visit www.bgbc.com. The opinions expressed are those of the author.