Cases using phrasing similar to:
"It is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail."
District Court Decision: Excluded
Appellate Court Decision: Affirmed
Compare Rodriguez-Felix, 450 F.3d at 1125-26 (examining for an abuse of discretion the exclusion of expert testimony on the basis of a report that was insufficient to allow assessment of the reasoning and methodology of the expert as a component of the district court's application of Daubert), and United States v. Turner, 285 F.3d 909, 912-13 (10th Cir. 2002) (reviewing the denial of a Daubert hearing for abuse of discretion), with United States v. Call, 129 F.3d 1402, 1405 (10th Cir.1997) (rejecting the defendant's argument that the district court had applied a per se rule of inadmissibility instead of properly applying Daubert when the court had expressly stated and demonstrated that it applied Daubert). ... Cf. Macsenti v. Becker, 237 F.3d 1223, 1231-32 (10th Cir.2001) (noting that even when a party does not timely raise a Daubert objection, "the trial judge is assigned the task of insuring that an expert's testimony rests on a reliable foundation and is relevant, but Daubert does not mandate an inquiry questioning and challenging the scientific proffer absent a timely request by an objecting party").Stock market
District Court Decision: Excluded
Appellate Court Decision: Affirmed
Plaintiffs claim that the district court abused its discretion by excluding the expert testimony of Kaye H. Kilburn, M.D., and Alan R. Hirsch, M.D., under Fed. R.Evid. 702 and the standards adopted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). ... After the court of appeals found that the expert witness testimony did not satisfy Daubert and instructed that judgment be entered as a matter of law, the Supreme Court held that an appellate court's authority "to direct the entry of judgment as a matter of law extends to cases in which, on excision of testimony erroneously admitted, there remains insufficient evidence to support 250*250 the jury's verdict."Neurological disorders Peripheral nervous system disorders Medical specialties Flame retardants Fire suppression agents
The Rule 702 standard incorporates the principles enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), in which the Supreme Court held that trial courts have a "gatekeeping" function to "ensure that any and all scientific 468*468 testimony or evidence admitted is not only relevant, but reliable," and Kumho Tire Co., Ltd. v. Carmichael, in which the Supreme Court held that Daubert's general gatekeeping obligation "applies not only to testimony based on `scientific' knowledge, but also to testimony based on `technical' and `other specialized' knowledge." ... U.S. Environmental, 2002 WL 31323832, at *3, *5 (permitting testimony of expert witness regarding the "practices and usages" of the securities trading industry based upon his "knowledge of the standard practices 472*472 of the securities industry" and his "knowledge of typical trading activity and the types of trading patterns that an experienced trader would recognize as irregular," but not permitting the expert to testify as to whether defendants "were actively participating in a manipulation" due in part because such testimony was "more along the lines of a legal conclusion") (citations and internal quotation marks omitted);
Daubert invests the Court with an obligation to determine the reliability and relevance of the expert's testimony, to evaluate the expert testimony offered against the data proffered to substantiate the opinion. ... Daubert establishes that an expert must employ a reliable methodology.
Based upon the Court's pronouncement that it would "act accordingly" if Dr. McDaniel's testimony were determined to be unreliable and the Court's subsequent determination that Dr. McDaniel's expert opinions and testimony were excludable under Daubert, Perma-Chink filed a "supplemental brief in support of motion for summary judgment of non-infringement" arguing there is no genuine issue of material 858*858 fact on the issue of non-infringement of the "improved depth of penetration" limitation in all asserted claims [see Doc. 348 at pp. 1-2]. ... Furthermore, in Pride, a case arising out of this very district, the Sixth Circuit agreed with the Honorable James H. Jarvis that a plaintiff's attempt to submit additional expert testimony was a "transparent attempt to reopen the Daubert hearing now that the weaknesses in [Pride's] expert testimony have been pointed out."
The second case is Pride v. BIC Corp., 218 F.3d 566 (6th Cir. 2000), in which the district judge ruled on several motions submitted after the magistrate judge had issued a report and recommendation to exclude the plaintiff's expert witness testimony under Daubert and the Federal Rules of Evidence. ... Plaintiff simply seeks to correct deficiencies in Mr. Baggett's report by substituting a new handwriting expert for Mr. Baggett (see Doc. 129 at 3), whose testimony was excluded by the Court based on its determination that his qualifications and proposed expert opinion did not satisfy Daubert and the Federal Rules of Evidence.
In his motion seeking an amended scheduling order, Plaintiff characterizes Dr. Jackson as "a novice expert making her maiden voyage into the perilous Daubert waters of expert witnessing," Pl. Mem. at 2, and concludes that "in retrospect, counsel should probably not have placed Dr. Jackson, who had no prior expert witness experience, in the position of having to write a Rule 26 report on such a short time leash." ... In Summers, the Tenth Circuit reversed the district court's denial of the plaintiffs' motion for a new scheduling order as an abuse of discretion where the plaintiffs sought to add new expert witnesses after the court excluded two of the plaintiffs' proposed experts on Daubert grounds.
That placing sole reliance on one's expert's position is not the kind of diligence meriting a continuance seems especially the case where the party has had lengthy notice by its adversary that its expert would be challenged, see Pena v. Leombruni, 200 F.3d 1031, 1035 (7th Cir.1999) ("The plaintiffs had been on notice for months that their expert might be excluded, yet they did nothing to find a back up and thus mitigate the harm to them should he be excluded and a continuance be denied."), although it is true that a party who relies on an expert is always deemed to know of the requirements of the Federal Rules of Evidence and Daubert, see Weisgram v. Marley Co., 528 U.S. 440, 455, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000) ("Since Daubert ... parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet."). ... Because the expert's methodology was flawed and his experience with the particular pesticide was lacking, the district court excluded the expert under Daubert, denied the plaintiffs' motion for a continuance to secure alternative proof on causation, and granted summary judgment for the manufacturer.
484*484 Finally, the court observes that even if Plaintiffs could survive their impermissible reliance on expert testimony, then manage to establish an inference of negligence based on res ipsa loquitur, they nevertheless would fail to carry their ultimate burden of proof. ... Defendant objects that Dr. Kaufman's training and experience do not qualify him to offer expert testimony on the crucial issue in Plaintiffs' medical malpractice claim: whether the standard of care for positioning and padding a patient for radical retropubic prostatectomy was satisfied in this case.
The Court recognizes that "[s]ince Daubert, . . . parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet. ... Although the PSC and Dr. Jewell have had the benefit of the Court's prior Daubert rulings in the formulation of the new expert report, that does not create prejudice to Pfizer.