In tort cases, courts grant defendants’ (Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993) motions almost twice as often as they do plaintiffs’ motions. That’s according to an analysis of more than 2,100 rulings from across the country. Here are three tips for defeating motions.
Daubert was meant to loosen an already liberal policy of admissibility was intended to “relax” the standard for admitting expert testimony. The rules of evidence embody, as one circuit court put it, a “liberal policy of admissibility” with a “strong preference” for admitting helpful evidence. ’s concern was, after all, “junk science” – phrenologist, for example, divining a defendant’s future dangerousness from the shape of his skull.
But lawyers often ignore what was meant to do, jumping instead to the factors. That’s a mistake.
Don’t be shackled by
the Daubert factorsThe rule – expert opinion must be relevant and reliable – is easy to state but difficult to apply. The problem is “reliability.” The court offered some guidelines for determining reliability: falsifiability, testability, error rate, peer review and publication, and acceptance in the relevant community.
As in other multi-factor tests, those factors are, to take a line from Judge Posner, “redundant, incomplete, and unclear.” Although the inquiry must be “flexible,” many courts apply the factors strictly, restricting instead of relaxing the standard for admissibility. That approach misapplies and the rules of evidence.
What’s more, the factors are poor indicators of reliability. Take peer review and publication. A court can easily determine whether a theory or approach has been published and peer reviewed. Yet for more than a century, scientists have lamented that the peer-review process is rife with intractable bias.Consider these gems – one a hoax, and all published and peer reviewed:
(a) concludes that anthropogenic climate change may cause a resurgence of mythical beasts.(b) is about “crazy cat ladies.”
(c) argues that the penis is better understood not as an anatomical organ but as a “social construct.”(d) is about the author watching westerns.The hoax is (c). That article – deliberately designed nonsense – was peer reviewed, published, and accepted in the relevant community.
In short, argue the factors as necessary, but be sure to get into the real stuff of reliability: knowledge and experience.
Emphasize knowledge and experienceExperience didn’t even make the list, and it’s probably the best indicator of reliability. Some courts have finally embraced it. In , for example, the Eleventh Circuit reasoned that a court may determine reliability “based primarily upon an expert’s experience and general knowledge in the field.”Of course, like a plague, there is the ubiquitous argument. (For the uninfected, roughly means “don’t take this rube’s word for it.”) The answer, even if not binding, is in the Eleventh Circuit’s decision and the Middle District’s
In , one expert was a mechanic with 40 years’ experience. He didn’t have advanced degrees or an up-to-the-minute résumé. But he had extensive experience with cars and with the problem at issue. He also examined the evidence, and that was enough. “[O]ld-fashioned … experience,” the court reasoned, “can be a powerful thing.”In summary, remind the court that was meant to loosen an already liberal policy of admissibility. Drum up knowledge and experience. Look for non-judicial uses of the expert’s opinions (NASA and the FAA, for example, require human-factors analysis.) But don’t let the court ignore what should be obvious at justice’s expense: “It is better to light one candle than to curse the darkness.”
1 James C. Cooper, Daubert, Searle Civ. Just. Inst., Oct. 2015, at 9, http://masonlec.org/site/rte_uploads/files/Daubert%20Report%5B1%5D.pdf; , 509 U.S. 579, 595 (1993).
2 580 F. Supp. 2d 1071, 1082 (D. Colo. 2006) (citation omitted).
3 520 F.3d 237, 243 (3d Cir. 2008) (quoting , 128 F.3d 802, 806 (3d Cir. 1997)). H.B. 24, 151st Gen. Assemb., Reg. Sess. (Ga. 2011) (adopting “the Federal Rules of Evidence as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal”).
4 , 522 U.S. 136, 153 n.6 (1997).
5 Susan Haack, , 95 Am. J. Pub. Health (Supplement 1) S66 (2005).
6 196 F.3d 833, 835 (7th Cir. 1999) (Posner, J.) (quoting , 806 F.2d 1316, 1318 (7th Cir. 1986)) (internal quotation marks omitted).
7 509 U.S. at 594; Susan Haack, , 72 Law & Contemp. Probs. 1, 6 (2009).
8 Haack, note viii, at 19–20.
9 Alex Csiszar,, 532 Nature 306, 306 (2016).
10 Andrew J. Hamilton, Robert M. May, & Edward K. Waters, , 520 Nature 42 (2015).
11 Will McKeithen, , 24 Gender, Place & Culture 122 (2017).
12 Jamie Lindsay & Peter Boyle, , Cogent Social Sciences (2017), http://www.skeptic.com/downloads/conceptual-penis/23311886.2017.1330439.pdf.
13 Jonathan Wyatt, , 8 Int’l Rev. of Qualitative Res. 280 (2015).
14 760 F.3d 1322, 1330 (11th Cir. 2014) (per curiam).
15 16 107 F. Supp. 3d 1305 (M.D. Ga. 2015).
17 at 1308.
18 Chinese Proverb.
Experience didn’t even make the Daubert list,
and it’s probably the best indicator of reliability.