August 2013

Recently, another Daubert exclusion of expert evidence was overturned on appeal.  On July 19, in re: Gregory Call vs. Pure Earth, et al, the Third Circuit reversed a district court’s ruling that excluded expert witness testimony based on Daubert grounds.  The matter was remanded for a new trial on damages.  Although the Third Circuit addressed the specifics of this case, the more worthwhile takeaway is as a reminder as to the standard for admissibility of expert testimony.

The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which states in relevant part:

“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.”

The Supreme Court interpreted this rule in Daubert v. Merrell Dow Pharma., Inc., as providing judges “some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony.”  The Daubert ruling also emphasized that the trial court must assess the principles and methodology, not on the conclusions generated:

“vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence,”

A 2011 study by PricewaterhouseCoopers (“PwC)” noted that since the 1999 Supreme Court decision in Kumho Tire Co. vs. Carmichael clarified that the Daubert criteria for challenges to expert witnesses extended to non-scientific experts, the number of challenges to expert witnesses rapidly increased, with the number of successful exclusions at nearly 50%.  With this type of success rate, there is a clear impetus to lawyers to continue the trial tactic.

The Third Circuit has noted the“‘importance of the excluded testimony should be considered” and identified several factors for the court to consider in when assessing the admissibility of expert testimony:

“(1) the prejudice or surprise in fact of the party against whom the excluded witness would have testified,

(2) the ability of the party to cure the prejudice,

(3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith or willfulness in failing to comply with the district court’s order.”

In this particular case, the Third Circuit’s Opinion stated:

“Rule 702 and Daubert require a district court to ensure that expert testimony is not only relevant, but reliable. As we have made clear, the reliability analysis [required by Daubert] applies to all aspects of an expert‘s testimony: the methodology, the facts underlying the expert‘s opinion, [and] the link between the facts and the conclusion. The standard for determining reliability is not that high Thus, plaintiffs offering expert testimony do not have to prove their case twice – they do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable.” [Citations omitted, Emphasis added]

Rulings such as these indicate that some trial courts have exceeded their intended role under Daubert.  In so doing, these courts are inappropriately requiring – just as the Third Circuit said is not necessary – for parties to win the case twice.  The PWC report described above includes numerous examples of witnesses being excluded because of a methodology topic with which reasonable minds could disagree or instances where it appears that the judges involved expanded their accepted gatekeeper function to include a final assessment of the technical results obtained.  Perhaps this recent ruling by the Third Circuit will serve to help realign the application of Daubert with its intended purpose.

Fulcrum Inquiry performs damages analysis and related expert testimony