United States: Planning Your First (or Fiftieth) Expert Challenge From Depositions Through Trial

A motion to exclude expert testimony can be a powerful tool to encourage settlement, win summary judgment, or challenge class certification. The primary goal of such a motion is, obviously, to prevent the introduction of expert evidence at trial. But these motions can also have the added purposes of both educating the court on the science underlying the case, as well as demonstrating to the other side your willingness and readiness to defend against their claims. That said, you should not file such a motion without first carefully considering the applicable legal standard, the testimony and expert you plan to challenge, and your overall likelihood of success.  

Ascertain the proper standard.

The first step in preparing to challenge an opposing expert is figuring out the applicable standard. Federal courts and most (~75%) states adhere to the Daubert standard, while a minority of states (including my home state of Pennsylvania) use the Frye standard, and there are even a few states which have a hybrid of the two. If you don't already know the standard applicable in your jurisdiction, you can quickly figure it out via a brief search on Westlaw, Lexis, or even Google.

The Frye standard is based on an old case out of the D.C. Federal Court of Appeals: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under Frye, the test for admissibility of expert testimony is based upon the "general acceptance" of the expert's methodology in the relevant scientific community. Proponents of the Frye test argue that it appropriately places the evaluation of a methodology's value in the hands of scientists, and not the courts; however, the Frye test also necessarily makes it harder for newer methodologies and techniques—no matter how valuable or valid—to find their way into a courtroom.

The Daubert standard, which is applied by most jurisdictions, evolved from Frye and is based on the 1993 case Daubert vs. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Daubert test officially made the court the "gatekeeper" tasked with determining itself whether the expert testimony to be offered is relevant and reliable. The Daubert decision established a series of factors to assist the court in so determining—e.g., whether a theory or technique has been tested; whether it was subjected to peer review and publication; the potential rate of error; and the "general acceptance" of the theory (the prior Frye test). Subsequent cases added additional factors and made it clear that the Daubert test applies to all expert testimony, not just testimony of a scientific nature.

In addition to the above common-law tests, be sure to check the applicable rules of evidence. For example, Federal Rule of Evidence 702 codified the Daubert standard, stating that a qualified expert's testimony may be permitted if "(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case."

Finally, in addition to the above standards regarding experts, don't forget the fall-back of Federal Rule of Evidence 403 (or its state equivalent)—namely, that the testimony to be offered should be excluded when it is more prejudicial and confusing than probative.

Preparing your challenge.

Once you've nailed down the appropriate standard, the first thing you must do is determine your objective: What do you hope to achieve with your motion? Do you want to completely disqualify the expert? Or do you just want to partially eliminate or otherwise limit his or her testimony?

Obviously, your objective will necessarily depend upon what you think you can achieve and what weaknesses you identify. Work with your own expert to identify flaws in the opposing expert's methodology or qualifications to ascertain what it is you will attack.

Will you challenge the expert's qualifications? See if the expert is offering opinions beyond her area of expertise. Examine her degrees and professional association memberships. Are her organizations substantive? Or do some of them merely require that one write a check to join? Some experts may even create organizations or associations to fluff their CVs. Do some digging.

Will you challenge the expert's methodology? Perhaps the expert has relied on insufficient or unreliable data. Maybe her methodology is too subjective, or was not peer-reviewed. If the methodology itself is sound, does it fit the facts of the case? Does the expert adequately explain how the methodology can apply to the legal question at issue? If the expert has a separate professional practice, are there inconsistencies between the expert's methodology and that practice?

Much of your preparation will involve learning the underlying science. Ask your own expert questions, and read the relevant literature. Get a technical dictionary applicable to the field, and refer to it frequently. Be patient, as you are outside your area of expertise and must take the time to learn.

If the expert has testified before, track down her prior testimony if possible so that you can highlight any inconsistencies. If your jurisdiction allows it, prepare for and take the expert's deposition (more on this below) for use at the hearing and/or at trial.

Examining the expert at a deposition or Frye/Daubert hearing.

As laid out above, if your jurisdiction permits it, you will likely want to depose the opposing expert. But even if you cannot, you may have to cross-examine the expert at the Frye/Daubert hearing itself. When doing so, remember: you are not at trial. Focus on the expert's methodology and qualifications, not on bias or other thematic issues you want to save for the jury.

At the hearing, you can highlight prior inconsistent testimony, point out flaws in the expert's testing, and even give the expert a "test" on the relevant science (e.g., to define a term, identify the position of various professional organizations on the subject, etc.) to highlight a lack of knowledge—though this latter tactic can sometimes backfire with experienced experts. If you can, use demonstratives, even a simple graph or bulleted list of points. These can greatly aid the judge, who may be completely unfamiliar with the underlying science.

When should you make the motion?

As a general rule, you should make the motion as early as you can. Your goal is to knock out some testimony and get a settlement or summary judgment. Some courts have explicitly held that such motions to exclude must be made prior to trial, but even if your jurisdiction has no such rule, it is wise practice. If you wait until trial, opposing counsel may sneak some previews of the questionable testimony into an opening, which could taint the jury. At that point, the judge might be more willing to allow the testimony to go forward, and a motion to strike after the fact is of very limited use if the jury has already heard the information.

Make sure to follow local practice and rules regarding deadlines and the form of the motion as well. For example, courts may require multiple orders (e.g., one setting a briefing schedule and hearing, and one actually granting the motion), affidavits of a competing expert, etc. The last thing you want is to have your motion thwarted by a procedural oversight.  

Even if you have grounds for a motion, you may not want to file one.

A Frye/Daubert motion can be a useful tool to promote a quick resolution to a case, but a failed motion has its own risks: Your motion and cross-examination has given the expert a preview of your examination at trial. She can correct her testimony, fill in the holes, and think up answers to your more difficult questions. Keep in mind that some studies (e.g., a 2010 study by PwC) have revealed that motions to exclude experts succeed less than half the time. If your motion is not particularly compelling, you may want to forgo it completely and reserve your best arguments for trial.  

What if you motion fails?

If your motion fails, you will have to face the expert at trial. This could be the subject of an entirely different article, but there are a few basic tips based on the above.

First, make a plan. Figure out your objectives in advance. Generally, at trial, you will not be trying to show that the expert is technically wrong because the jury may not understand an overly technical cross, and even if you win such an argument on some arcane scientific point, they may not notice. If you lost your motion, remember: if the judge did not believe that the expert's science was actually wrong, the jury may not either.  

Accordingly, you may want to shift from a technical attack to a more persuasive presentation. Get the expert to concede facts or elements he can't deny that are important to your case. If there are any easily assailable items in his method, focus only on those. Highlight inconsistencies in his prior testimony. Bring up the fact that he is being paid. Your primary goal should be to give the jury reservations about the expert that you can exploit in your closing.

Some notes of caution: If an expert has previously testified in many cases, you may be tempted to paint him as a "career" witness, but this is not always wise, as some juries may positively view such experience as indicative of expertise. (As in, "Wow! This guy must be smart! People want him to testify all the time!") Do not let the expert lead you off course on a tangent (unless you know where it is going), and if this happens inadvertently, always bring the examination back to your plan and question. Also, be wary of attacking the expert on technical grounds as it can confuse the jury, and, if you're not successful, end up strengthening the expert's position.

Finally, if you lost an earlier challenge to the expert, make sure to preserve your right to appeal by making an objection when the testimony is offered at trial or at any other appropriate time in accordance with the applicable rules.

Conclusion.

Motions to exclude expert testimony, when done properly, remain a very effective way to obtain an early resolution to a claim. Although the above tips are certainly not an exhaustive guide to such motions, it is my hope that they are useful to you in filing, arguing, and (hopefully) winning your next expert challenge.  

Originally published in by DRI's, Trials and Tribulations newsletter

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions