When much of your case rests on your expert's testimony, the ever-looming threat of a Daubert motion is unnerving, to say the least. Overcoming a Daubert challenge will require intensive strategizing beforehand, including an extensive review of earlier cases wherein a Daubert motion was raised.
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In complex class actions, an expert witness is necessary to substantiate or refute a claim made by the plaintiff or defendant. Although usually a reliable source of information, an expert witness may have ulterior motives that call his or her testimony into question. For instance, the witness might omit relevant details, misrepresent certain facts, cherry pick scientific literature, or attack legitimate expert counterpoints using strawman arguments that non-experts would be unable to distinguish as such because of the complexity of the subject. Expert peer review sets a high standard for testimonial accuracy, thereby preventing misrepresentation of the facts.
In the academic domain, psychologists don’t review the validity of medical causation. So why do we ask courts to perform these analyses in highly specialized fields from acoustics to zoology? According to JuriLytics LLC co-founders Amit Lakhani and David Faigman (acting chancellor and dean of UC Hastings College of the Law), litigators can now help courts with unbiased science, and in the process, better serve clients.
The Defense Reseach Institute's monthly magazine For the Defense recently featured an article written by Professor David Faigman and Dr. Amit Lakhani entitled "Measuring the Expertise in Expert Opinion." The article describes that many of the risks in using expert witnesses stem from the lack of credibility when fighting the "battle of the experts." The article goes on to describe a solution whereby litigators can offer judges unbiased and neutral science to help gain an advantage using peer review.
Professor David Faigman just submitted an amicus brief to the Ninth Circuit providing a Daubert analysis that was confirmed by JuriLytics' peer reviewers and mainstream science. The case, City of Pomona v. SQM North America, involves the contamination of groundwater with perchlorate which the city argues was sourced from fertilizer imported by SQM North America from the Atacama Desert. In 2011, City's expert Neil Sturchio was excluded by the district court from testifying about the source of groundwater contamination. The Ninth Circuit ultimately reversed the exclusion and remanded for trial, stating that the faults found by the district court go to the weight of the testimony.
JuriLytics first became interested in City of Pomona v. SQM North America late 2014 when SQM North America petitioned the Supreme Court to resolve an apparent split in the circuits regarding the application of Daubert after the Ninth Circuit's ruling. On its own, JuriLytics commissioned independent peer review of Dr. Sturchio's expert opinions. Our neutral peer reviewers found, post-hoc, that the methods utilized by Sturchio were state-of-the-art and accepted by the geochemistry community (see the full case study here).
After an eventual trial and adverse verdict this past summer, the City of Pomona has appealed again. This time, the main issues revolve around the improper admission of defendant's groundwater contamination expert. Professor Faigman's brief describes the irrelevance and unreliability of his testimony, among other things, and confirms his analysis with input from the scientific community via a second set of JuriLytics peer reviews of Dr. Laton's opinions.