I recently found this article from The Expert Institute about preparing for a Daubert Challenge with your expert. I thought it might provide some insight into the process.
Surviving a Daubert Challenge: 6 Tips for Success
Rich Matthews and Mehjabeen Rahman, The Expert Institute
Tuesday, November 1, 2016
- Beat a Daubert challenge before it’s raised
A Daubert challenge is one of the strongest legal mechanisms opposing counsel can use to discredit the validity of your expert’s testimony, and possibly have it excluded altogether. When choosing your expert, keep the potential for a Daubert challenge in mind from the very beginning. The best way to do this is to look for expert witnesses whose work will best fit the requirements that are laid out as the Daubert standard. These include: 1) testing; 2) peer review; 3) rates of error; and 4) acceptance within the specific scientific community where the methodology is employed.
- Address all parts of a Daubert challenge
Make certain that every single question presented by the challenge is fully addressed and answered. This means including all documents, data, articles, and any other relevant and credible material that support your expert’s position. Additionally, not all judges will allow a full-blown Daubert challenge: the hearing may not encompass a comprehensive oration by either counselor and will largely be an issue of judicial review and discretion, so in some cases your documentary responses may have to stand on their own.
- Get the Court on board
Daubert hearings are always outside the presence of the jury, which means that the issue of admissibility of expert testimony is up to the judge. The attorney has to know his expert’s credentials, the purpose of testing, the methodology, and the academic literature that supports these techniques. More importantly, an attorney must describe all of these aspects in a clear and concise way that a judge will understand. The methodology underlying the expert’s opinion generally should be one that is largely accepted and relied upon by the relevant scientific community.
- Make sure your expert’s testimony remains within the scope of their specialty
When experts start giving an opinion in areas that may be in their general area of knowledge, but not the subject of their actual focus or specialization, this can trigger a Daubert challenge. The best way to avoid this is to make sure that the expert’s report, opinion, and testimony are consistent and narrowly tailored and, most importantly, within the bounds the expert’s unique specialization.
- Take note of the time to respond to a Daubert challenge
When plaintiff’s counsel has submitted all expert witness information to the court, including a copy of their expert’s report and notes, it is improper for opposing counsel to wait to challenge the expert’s capacity to testify on a substantive issue until the last minute. Depending on the jurisdiction, and based on the governing rules, a court may deny or even dismiss a Daubert challenge if it raised too close to trial. Under the federal rules, timeliness related to expert disclosures are governed by FRCP Rule 26, however many jurisdictions have their own local rules that prescribe time requirements for expert witness related matters, so be sure to check both.
- Remember that the Court is a gatekeeper
In a Daubert hearing, the role of the judge is limited to that of a gatekeeper, serving a 104(a) function under the FRE. This means the only issue the judge should be deciding is whether or not your expert’s testimony meets the threshold for admissibility under FRE 702, guided by the tests articulated in Daubert. In preparing for a Daubert challenge, be careful not to frame the issues as if the judge is ruling on the weight of the expert’s testimony as to the merits of the case- that is purely an issue for the jury.