How to Avoid It and What to Do When it Happens?
A Daubert motion is like Zeus’ thunderbolt – one of the most effective and devastating weapons in the armory of an attorney which can be used against an expert witness. When the Court pronounces, “Motion to exclude expert testimony is granted”, the pain is no less than being struck by lightning. “Did the Court just put an end to my career as an expert witness”, it’s natural to have this question clog your mind! Can I appeal my exclusion? Can I get a chance to rectify my position? It wasn’t even my fault – can I sue the attorney for failing to protect my testimony properly? These are the questions that can trouble any expert witness following exclusion. You can hope for an appellate court to overrule the exclusion, but if that doesn’t happen or till the time it happens, you need to prepare an answer as to why your testimony was excluded in a previous case and why you should not be disqualified /excluded in the next case for the same reason. If you can prepare a convincing answer to this question, you have nothing to worry about for all practical purposes!
I have attempted to provide a starting point for finding the answer to this question and while I
sincerely hope that none of readers have to put this to use, it could be of certain help if the unfortunate exclusion happens.
Understanding Why It Happened!
- Your Rule 26 Filing (includes your CV, Preliminary or Final Expert Report, Fee
Schedule and List of Cases for the Last Four Years).
- A court filed copy of your expert report.
- The Motion to exclude.
- The Memorandum in Support of the Motion to exclude and Any Exhibits that may have been filed with it.
- Your attorney’s response to the Motion to exclude.
- Your deposition transcript.
- The Court’s order granting the motion.
- Any other document that may have been referred to in the documents listed above.
You must understand the chain of events that led to the exclusion of your testimony. Ask your attorney for the following documents:
The first thing to check is whether your expert report, CV, Fee Schedule and list of cases were filed in exactly the same format in which you submitted it to your attorney. In the past, experts have found that their report was modified and have landed in trouble because of that.
Next, read the Motion to exclude and the Memorandum in Support to determine the grounds on which your testimony was challenged. If you cannot understand any of the legalese, ask your attorney! The next step would be to go through your attorney’s response to the Motion to exclude. See if the attorney’s responses resonate with your own responses to the motion to exclude. Take a note of any arguments that you believe may have helped defeat the motion and weren’t used. Once you have thoroughly read the motion and your attorney’s response, read the Court’s order. If it is a reasoned decision, you will be able to see exactly why the Court thought that your testimony did not meet the standards set under Daubert. If it’s a one line order saying Motion to exclude expert testimony is hereby granted, you will need to figure out the reason for exclusion from the motion to exclude. More often than not, a motion to exclude will challenge your testimony on qualification, methodology as well as relevance.
Let’s explore what are the options for some of the common grounds for challenging an expert witness:
Lack of Qualifications:
If your testimony has been excluded on the grounds of inadequate qualification, consider if the case really fell within the four corners of your area of expertise? For example, Medical experts who tend to opine on the future employability of the Plaintiff in a personal injury case are more likely to get excluded because they are not vocational experts ! Such exclusion only means that the expert should be wary of testifying on employability issues in the future. As a medical expert, she is still qualified to testify on issues such as extent of injury or the standard of care. So while you may think that the opinion you are giving is within your area of expertise or based on your opinion, a certain inference makes perfect sense; tread the boundaries of your expertise very carefully!
Many a times, attorneys fail to present your qualifications sufficiently enough for it to survive a motion to exclude. There have been instances when experts have been qualified after a reconsideration motion was filed and more facts about the expert’s qualifications were presented. Remember, the burden of proof to establish that an expert is qualified lies with the party who is offering the expert’s testimony. Experts should ensure that their attorneys know exactly how the expert is qualified to testify in a particular case and on all the issues he/she is testifying about.
Most expert challenges (both successful and otherwise) are based on this criterion – more than qualification, relevance or any other ground. And if this is where you have been hit, you need to look at your methodology through a microscope!
There have been several instances where experts have only relied upon the data/information provided by the retaining party and have found themselves excluded because they did not conduct an independent analysis of the issues involved in the case. Again, if this has happened, one can always overcome this by ensuring that only the expert witness is for hire and not the opinions onerenders.
It always helps to check if a particular scientific principle or methodology being used has been accepted by Courts in the past. Though Courts always have the guidance from Daubert, Kumho and Rule 702, whether a proposed expert should be permitted to testify is case, and fact, specific.
There have been instances where renowned and excellently credentialed experts have been excluded for using an unreliable methodology but it certainly doesn’t mean the end of the world for them!
Stating Legal Conclusions:
Federal Rule of Evidence 704 states, “An opinion is not objectionable just because it embraces an ultimate issue.” However, Rule 704 was not intended to allow experts to offer opinions embodying legal conclusions. [See United States v. Scop, 846 F.2d 135, 2nd Circuit]. Appellate Courts have held that [Expert witness] statements embodying legal conclusions exceed the permissible scope of opinion testimony under the Federal Rules of Evidence. [DiBella v. Hopkins, 403 F.3d 142].
An expert should always remember that the ultimate trier of fact is the jury and the expert’s role is to assist the jury in reaching a logical conclusion. By reaching legal conclusions, an expert usurps the role of the Court in instructing the jury, and usurps the role of the jury in interpreting the case. In Hygh v. Jacobs, the 6nd Circuit noted, “Whereas an expert may be uniquely qualified by experience to assist the trier of fact, he is not qualified to compete with the judge in the function of instructing the jury.”
Hence, no matter how obvious it appears that the defendant infringed the patent, the accused was guilty of murder, the insurer breached the insurance agreement, the store owner was negligent in causing an injury or any other outcome which comes close to something that the jury or the judge should decide, an expert must always ensure that such opinions do not find their way into the expert report or the testimony.
Expert Witnesses are considered to be one of the best in their business and juries give a lot of weight to admissible expert testimony. By taking small precautions, an expert can ensure that no matter
how many challenges the opposing counsel raises against her testimony, the Court’s ruling is always: MOTION TO EXCLUDE DENIED.
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