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As the plethora of Daubert challenges raised in federal courts demonstrate, district court judges are taking their gate-keeping power over the admission of expert witness testimony very seriously, often with devastating effects on litigants (and their counsel). The 9th U.S. Circuit Court of Appeals alone has reviewed more than 50 Daubert challenges since the beginning of 2000. Federal courts have excluded expert testimony on a variety of grounds, most of which result from either a failure to meet Daubert‘s reliability and relevance standards or a procedural misstep, such as the untimely production of expert witness reports. Because trial court rulings on the admissibility of expert testimony are reviewed under an abuse of discretion standard, district court decisions excluding “expert” scientific and technical evidence consistently withstand scrutiny by circuit courts. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the U.S. Supreme Court rewrote the book on the admissibility of expert witness testimony, rejecting the long-held “general acceptance” standard established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in favor of a new standard more in accord with Federal Rule of Evidence 702. Rather than relying upon the relevant scientific community to police itself, the Daubert court charged federal trial judges with gate-keeping responsibilities and oversight over “any and all scientific testimony or evidence.” District courts were granted broad discretion in making admissibility determinations, beginning with a preliminary assessment about the methodology, relevance and reliability of the reasoning underlying the testimony. Later, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the court expanded that broad authority even further, clarifying that the judge’s gate-keeping obligations extended to all expert testimony, including technical or other specialized areas of knowledge. Although the Daubert court did “not presume to set out a definitive checklist or test,” four key reliability and relevance considerations were identified: 1. whether the methodology can be (and has been) tested; 2. whether the theory or technique has been subjected to peer review and publication; 3. the known or potential rate of error; and 4. “general acceptance” of the theory or methodology within a relevant scientific community. Some courts also consider whether the expert opinion grew out of independent research, or whether it is entirely litigation-based. EXCLUSION OF TESTIMONY The exclusion of expert testimony often has a devastating effect on the concerned parties, especially in cases involving complex litigation or novel scientific claims. The Daubert court foreshadowed these concerns, acknowledging, “a gate-keeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations.” Chief Justice Rehnquist also warned of the potential for problems in applying the steps required for Daubert analysis in his separate opinion, noting, “definitions of scientific knowledge, scientific method, scientific validity and peer review � [are] matters far afield from the expertise of judges.” Cases abound where judges have apparently been forced to assume the role of the amateur scientist, especially in cases where plaintiffs set forth novel scientific claims. In Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193 (10th Cir. 2002), the 10th Circuit concurred with the district court in excluding expert witness testimony based upon its finding that “bromocriptine’s similarity to other ergot alkaloids constituted an unreliable basis on which to conclude that the drug causes vasoconstriction and ensuing adverse effects like [plaintiff's] stroke.” After a lengthy discussion of the plaintiff’s expert’s theories and the defendant’s counter-theories, the court upheld the exclusion of the plaintiff’s expert testimony and the resulting award of summary judgment to the defendant. Even though the plaintiff’s “evidence provided support for the FDA’s decision to withdraw the indication for Parlodel as a postpartum lactation suppressant, as well as for the decisions of experienced clinicians that the apparent risks of Parlodel outweighed the limited benefits of prescribing the drug as a lactation suppressant,” the district court’s conclusion that the expert testimony was “guesswork” did not constitute an abuse of discretion. As the circuit court reminded litigants, “the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.” Litigants should also be aware that there is no requirement of an evidentiary hearing under Daubert. In Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244 (6th Cir.), the 6th Circuit held that the district court did not abuse its discretion by declining to order an evidentiary hearing before ruling on motions in limine seeking to exclude expert scientific testimony offered by plaintiffs. The plaintiffs were suing the operators of a natural gas pipeline compressor station to recover for injuries allegedly caused by long-term exposure to polychlorinated biphenyls (PCBs). After being fully briefed by parties as to expert testimony, the district court excluded the plaintiff’s expert testimony for failure to comply with Daubert standards. The court then granted the defendant’s motion for summary judgment because, absent such expert testimony, the plaintiff could not establish causation. The 6th Circuit upheld the district court’s rulings and denied the plaintiffs an opportunity to obtain additional expert testimony to remedy the apparent deficiencies in the proffered testimony, rejecting the plaintiffs’ argument “that considerations of equity and fair play demand that [the plaintiffs] have an opportunity to cure the deficiencies in their proofs” and stating that the plaintiffs’ “assertion, made without any authority to support it, is without merit.” Finally, litigants must be careful to make a timely disclosure of reports prepared by the expert witness and any underlying expert reports used to prepare trial testimony. Litigants who fail to make timely disclosures do so at their peril. In Dura Automotive Systems of Indiana, Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002), the district court granted summary judgment to defendant CTS after disqualifying the plaintiff’s sole expert witness. The plaintiff’s hydrogeologist relied upon mathematical models in groundwater flow that were created by two other employees of the expert’s consulting firm. After the hydrogeologist testified that he was not an expert in mathematical modeling, defense counsel moved to bar his testimony. Despite affidavits from four employees who had worked as professional “groundwater-flow modelers” for the consulting firm attesting to the reliability of the models used in the preparation of the testifying expert’s reports, the court granted the defendant’s motion to strike on the ground that the plaintiff’s disclosure of additional expert witnesses, as required by Federal Rule of Civil Procedure 26(a)(2), was untimely, since the deadline for filing expert reports had expired six months previously. Noting that the plaintiff was a “substantial firm rather than a hapless individual” and opining that the plaintiff’s “reticence about disclosing the other experts may have been strategic,” the court concluded that the district judge could “refuse to exercise lenity without being thought to have acted unreasonably.” One can imagine the difficult conversation the lead trial counsel must have had with his or her client when the court excluded the entire expert report on the grounds that the background contributors to the report were not identified as “experts” prior to trial. IMPACT ON COUNSEL AND CLIENTS The Daubert revolution has changed the landscape in the oft-derided “battle of the experts” for both counsel and clients. As the trend toward satellite litigation involving challenges to expert witness testimony continues to gain momentum, lawyers need to be mindful of the significant risks associated with a ruling excluding expert testimony, risks which could include the “gutting” of their client’s case and potential claims by clients against their lawyers. Litigators who base their cases largely upon the opinions expressed by expert witnesses need to be especially cautious during the pre-trial phase. It may very well be that the outcome of the trial is decided on a paper record through a well-drafted motion in limine rather than on the witness stand. Accordingly, increased focus should be placed on the proper and timely disclosure of the expert’s report(s) and deposition and increased attention paid to the governing rules of the court, including local rules and courtroom standing orders. Motions to exclude expert testimony often begin with examples of the opposing counsel’s failure to comply with scheduling requirements or the guidelines outlining the content of disclosures, all of which may prove fatal to the case long before the expert reaches the witness stand. Litigators must also be aware that today’s courts are willing exclude testimony even if the dereliction is that of counsel and the resulting exclusion entirely destroys the impacted party’s case. When affirming the summary judgment granted to the defendant after the plaintiff’s late and deficient expert report was stricken by the district court, the 7th Circuit noted, “a client whose interests are harmed by an attorney is, of course, not without a remedy.” Salgado v. General Motors Corp., 150 F.3d 735 (7th Cir. 1998). To avoid such an adverse outcome, counsel must focus on the four helpful (but not definitive) checkpoints identified in Daubert: testing, publication and/or peer review, rates of error and general acceptance in the pertinent scientific community. Counsel should also be aware of the stigma courts sometimes attach to research done specifically for use in litigation, which can also raise a red flag with respect to the reliability of the expert’s testimony. An interesting by-product of the ubiquity of Daubert challenges in federal courts is that state courts have become a more attractive venue option for many plaintiffs seeking to avoid potentially expensive and time-consuming collateral litigation over the introduction of expert testimony. Many state courts, such as Arkansas, Arizona, California, New Jersey and New York, have rejected the Daubert standard in favor of either the old Frye standard of “general acceptance” in the relevant scientific community or some combination of factors uniquely tailored by the court. Therefore, Daubert can play a role not only in the preparation and submission of expert testimony to opposing counsel and the court, but also with respect to choice of venue and other tactical considerations, including the possibility of removing the case to federal court to gain the opportunity to vet the opposing party’s expert under Daubert standards. RAISING THE BAR The admissibility of expert witness testimony has always been problematic for counsel, especially when the testimony involves matters outside the routine boundaries of scientific investigation. The increased willingness among federal trial judges to exclude experts on either reliability or relevance grounds under Daubert or due to procedural issues, such as timeliness or disclosure deficiencies, has raised the bar for counsel and opened the door to Daubert-based legal malpractice claims. Litigators, therefore, need to exercise special caution in the area of expert testimony, paying special attention to pre-trial admissibility guidelines and protocol. The extra time and care taken at the outset of litigation may serve to save — or destroy — the expert’s testimony and the lawyer’s relationship with his or her client. David Balser is a partner and Valerie Barton is an associate in the Atlanta office of McKenna Long & Aldridge, where they specialize in complex business litigation. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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