Picking Off Their Experts: Arguments That Worked

In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

597 (1993), the U.S. Supreme Court held that Federal Rule of

Evidence 702 provided a more expansive criterion for the admission

of expert testimony than the previously reigning Frye

test. Under Frye, expert testimony had to be based upon

methodologies that were generally accepted as reliable in the

relevant scientific community.

In rejecting the ''general acceptance'' test,

the Supreme Court also rejected the notion that its ruling would

create a ''free for all'' with respect to expert

testimony. The Court emphasized that under the federal rules,

''the trial judge must ensure that any and all scientific

testimony or evidence admitted is not only relevant, but

reliable.'' In its subsequent decision in Kumho Tire

Co. v. Carmichael, 526 U.S. 137 (1999), the Court held that

these standards applied to all expert testimony, not just

scientific testimony.

So, while opening the evidentiary gate wider to allow expert

testimony that might not be ''generally accepted,''

the Supreme Court's rulings cast district court judges in the

role of ''gatekeepers,'' with the responsibility to

close the gate on expert testimony that does not possess the

appropriate indicia of reliability.

Ironically, it appears that, at least on the current pendulum

swing, the result from Daubert's gate-opening ruling

may be that fewer, not more, experts are passing through. There is

now greater scrutiny at the gate, and this, in turn, opens up

opportunities for litigators to advance their position by making

''Daubert'' motions to exclude the

testimony of their adversary's expert.

Successful Daubert motions can have dramatic

consequences. For example, in Lippe v. Bairnco Corp., the

plaintiffs challenged certain transactions engaged in by the

debtor, Keene Corp., as fraudulent conveyances. Central to the

plaintiffs' case was expert testimony regarding the valuation

of the transferred assets. The court granted the defendant's

Daubert motions and excluded all of plaintiff's expert

testimony. Lippe, 288 B.R. 678 (S.D.N.Y. 2003). Having

succeeded in knocking out the experts, defendants promptly filed

motions for summary judgment, which were quickly granted.

Lippe, 249 F. Supp. 2d 357 (S.D.N.Y. 2003).

Of course, not every Daubert motion results in such a

walk-off home run. Even where the Daubert motion is

completely successful, a trial may still be necessary. Or, the

court may exclude a portion of the expert's proffered

testimony, and allow the remainder. But even where the motion is

granted only in part, the ruling will usually provide a significant

tactical advantage to the movant.

On a motion to exclude expert testimony, the burden of proof by

a preponderance of the evidence is on the proponent of the expert

testimony, not the movant who is challenging that testimony, a

significant advantage to the movant. Should the motion be granted,

the standard on appeal also favors the challenger: an appellate

court will not reverse the trial court's decision on a

Daubert motion unless there has been an abuse of

discretion, or as it is sometimes stated, unless the ruling is

''manifestly erroneous.'' General Electric v.

Joiner, 522 U.S. 136, 142 (1997).

There are many grounds on which a motion to preclude expert

testimony may be based, and the individual circumstances will

control; however, there are several, sometimes overlapping, grounds

that come up with sufficient frequency to form something of an

initial checklist.

The Expert Is Not Qualified

Courts frequently preclude expert testimony where the witness

has neither the education nor the experience required to offer an

expert opinion on the contested issues. For example, in a

bankruptcy case, the disqualified expert had no formal education or

training in business valuation and, by his own admission, was not

qualified as a certified business valuator. The expert also

admitted that he personally did not issue business valuation

reports. Rather, he relied upon members of his staff who were

certified business valuators for their input. However, it was only

the proposed expert who was proffered as a witness and none of

these staff members were called to testify at the three-day voir

dire held by the court; they were not subject to cross examination.

The court declined to admit an expert report that was, in effect,

''submitted by a corporate entity.'' In re Med

Diversified, 334 B.R. 89, 96 (Bankr. E.D.N.Y. 2005).

The 'Wrong' Qualifications

An expert may also have general qualifications but her testimony

may...