One of the most debilitating and demoralizing losses a litigating party can suffer is having its expert witness “fail” a Daubert challenge, and thus have that expert witnesses’ testimony and reports be deemed inadmissible at trial.
It goes without saying that tens of thousands of dollars (if not more, or much more, in some cases) of expert fees and billable hours can go into working with an expert to prepare evidence supporting a claim or defense, much of which is essentially lost when the evidence is deemed inadmissible due to an adverse Daubert challenge ruling. Even more damaging, a party’s entire case might rest on the arguments implicit in the expert’s evidence, and the party may not have the resources, time, or alternative theory to bring an additional expert witness to court.
In short, losing a Daubert challenge can mean losing the case. So, how best to survive a Daubert challenge against your expert witness?
The Mechanics of a Daubert Challenge
In order for an expert witness’ testimony and/or reports to be admissible in federal court and many state courts, it must be able to withstand a Daubert challenge. When an expert witness is challenged by the opposing party, the court will apply the following four questions in evaluating the methodology relied upon by the expert and applied to the facts of the case:
- Has the methodology been tested?
- Are there known rates of error?
- Has the methodology been generally accepted?
- Has the methodology been subject to peer review?
If the court is unsatisfied with the answers to these questions, it may exclude the expert witness from testifying and the party from presenting any evidence at trial based on the expert witness’ work.
Preparing Your Expert Witness for a Daubert Challenge
In order to prepare a witness for a Daubert challenge, you will obviously want to use your own firm resources as much as possible to make sure that the expert witness you’ve retained is relying on tested methodology that is generally accepted and subject to peer review, but there are limits to that approach. As a non-expert, it can be difficult to gain the independent expert knowledge necessary to conduct an impartial review of your expert’s work and evidence, and it can be easy to let your judgment be biased by the outcome you are seeking and by the expert’s knowledge that you’ve already relied upon.
Ideally, you will want to bring in impartial reviewers who are leading authorities in their respective fields whose only interest is in providing an accurate, independent review of your expert’s work. By working with impartial reviewers, you can better gauge whether you will survive a Daubert challenge early on in the case, and you can provide additional evidence to the court to bolster your defense to a Daubert challenge by including the opinions of the impartial reviewers in your submission to the court.
Work with JuriLytics in Survive a Daubert Challenge
At Jurilytics we work with parties and counsel to make sure that their expert testimony and reports are as compelling as possible in order to meet all applicable federal and state standards for admissibility. We do this by enlisting top academic talent in respective fields to provide impartial review to expert reports with specific questions tailored to the facts of a given case. We work with attorneys to draft whatever work product is suitable in a given matter, and to provide ongoing support with expert witness testimony and reports throughout litigation.
Call us today at (650) 273-6476 to see how we can help in your matter.