Scores of experts have found to their unhappiness how the most exalted academic and professional credentials are often insufficient to admit their testimony at a jury trial in federal and many state courts.  The reason is the 1993 Daubert opinion of the U.S. Supreme Court, which ended a long tradition of the more relaxed Frye rule, and instead required that scientific testimony be admissible to a jury only if compliant with Rule 702 of the Federal Rules of Evidence.  Under that rule “‘scientific’ implies a grounding in the methods and procedure of science, and ‘knowledge’ connotes more than subjective belief or unsupported speculation.”¹
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This issue addresses the compelling litigation economics of Daubert motions.  It uses as a starting point the well-documented incentives that plaintiffs and their lawyers have for bringing junk litigation that has its basis in junk expert testimony, and then it demonstrates Daubert’s ability to parry such junk litigation by eliminating those incentives.  The strategies discussed here work equally well on junk litigation, whether it is based upon junk science as traditionally construed, or on the soft-science, social science or non-science versions of junk expert testimony.
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The summer of 2006 saw the First Circuit and several district courts tackle the issue of expert qualification in cases ranging from 18^th century case-clocks to swimming pools to shoe imprints.  Also before the court were two cases involving the methodology used by proffered experts in reaching their opinions on a power saw and a fiberglass ladder.  While not all the outcomes favored the defense, the cases provide useful reminders of the standards to which experts are held on both sides of the “v.”
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Supplementation:  In Major v. Astrazeneca, Inc., 2006 WL 2640622 (N.D.N.Y. September 13, 2006), the plaintiffs alleged that illegally dumped waste migrated into their drinking water, thereby injuring their persons and property.  Their medical expert opined that one of the waste products – perchloroethylene – is a human and animal carcinogen, the burning of which generates dioxins, which are also human carcinogens.  However, the expert did not provide a basis for his opinions and stated that he would supplement his report.  His report remained unsupplemented for over two years, until the defendants moved for summary judgment.  At that time, an affirmation from the expert containing the supplemental information was submitted in opposition to the defendants’ motion.  The court excluded the expert on the grounds that his affirmation was not proper summary judgment evidence, and that it would prejudice the defendants to consider the affirmation since discovery was closed and they would not have an opportunity to explore the expert’s newly disclosed opinions.  The court found similarly with respect to the plaintiffs’ toxicology expert and appraisal expert.
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In the last quarter, the Third Circuit Court of Appeals and the district courts within the circuit have not handed down any notable Daubert decisions.  A recent opinion from the Supreme Court of New Jersey, however, offers some good lessons about Daubert principles and practice.  In State v. Moore, 902 A.2d 1212 (N.J. 2006), the court considered the use of hypnotically refreshed testimony to identify the defendants in criminal trials.  This issue was considered twenty-five years after the court decided, in the case of State v. Hurd, 432 A.2d 86 (N.J. 1981), that such evidence was admissible if certain guidelines were satisfied.  In Moore, the court reversed its course, holding that such evidence was per se inadmissible due to reliability concerns.
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Recent decisions by the Fourth Circuit squarely reaffirm the trial court’s discretion in its Daubert gatekeeping role.  One of the most interesting cases addressed in the Fourth Circuit was Heaps v. General Motors Corp., 2006 WL 2456231 (D. Md. Aug. 22, 2006).  In Heaps, the court disregarded opinions submitted by the plaintiff’s expert on the matter of an alleged defect or condition in an automobile.  Initially, the plaintiff’s expert did not provide an opinion with respect to the existence of an alleged defect in the automobile.  At his deposition, the expert confirmed that his opinions were limited only to valuation but later in an affidavit attached to the Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, the expert opined as to causation regarding why the vehicle would not start.
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Samuel Cleveland appeared in the emergency room at Bayne Jones Army Community Hospital and was triaged as a low priority patient.  He failed to provide a medical history of prior congestive heart failure, hypertension, diabetes, renal failure, etc.  Mr. Cleveland was not seen by a physician, but a physician’s assistant assessed respiratory infection, bronchitis, and sinusitis, and sent him home on antibiotics.  Mr. Cleveland came back to the ER two days later and was diagnosed with pneumonia related to congestive heart failure, went into respiratory and cardiac arrest, and became comatose until he died several years later.  His family filed suit against the United States pursuant to the Federal Tort Claim Act, and proffered no less than four experts, all of whom were found to lack qualifications to give evidence in the case.
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In U.S. v. Lopez-Medina, 461 F.3d. 724 (6^th Cir. 2006) a criminal defendant objected to expert testimony from two law enforcement officers.  Id. at 742-43.  It is unclear whether the defendant actually made formal Daubert objections to the evidence before trial.  Nevertheless, during trial the defendant objected to the officers’ testimony as to: whether the defendant had been engaged in “counter-surveillance” of the law enforcement officers; the officers’ belief that certain scraps of paper were drug ledgers; and the officers’ belief that numbers on the scraps of paper corresponded to kilograms of cocaine and dollar amounts.
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The Seventh Circuit recently added some clarity to a point of frequent confusion on the role of Daubert in bench trials.  The decision, In re Salem, __ F.3d __, 2006 WL 2864049 (7^th Cir. Oct. 10, 2006), is a procedurally complex case originating from a bankruptcy court’s dismissal of a proposed Chapter 13 plan.  The Daubert issue in the case concerned the valuation of a rental house owned by Mr. Salem.  Mr. Salem’s Chapter 13 plan was a “zero percent plan” that made no provisions for payment to unsecured creditors.  It also treated an outstanding judgment in favor of Mr. Salem’s brother as unsecured.  Id. at *1.  Mr. Salem’s brother objected to the plan, arguing that the rental house had sufficient equity to allow the judgment to attach to it.  The question then before the bankruptcy court was the valuation of the rental house.
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In recent months, courts in the Eighth Circuit have made it clear that witnesses, although undoubtedly “expert” for Daubert purposes, must still be careful to confine their intended testimony to issues within the scope of their expertise, present the methodology they used in coming to their conclusions, and show that such methodology was appropriately applied, or else risk having their testimony barred.
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The Ninth Circuit recently ruled that the opinion of a slang expert which purported to decipher coded words of alleged drug traffickers met the test for admissibility under Daubert, thereby affirming the flexibility of Daubert to apply to untraditional opinions.  In U.S. v. Decoud, et al., 456 F.3d 996 (9^th Cir. 2006), the defendants appealed their convictions and sentences on drug trafficking and related charges.  On appeal, one of the defendants argued that the district erred in admitting testimony by a government expert who opined that certain slang phrases recorded on tape were actually codes for drug deals.  The defendant challenged the reliability of the expert’s assertion that he understood the meaning of slang terms such as “diznerty,” “woop-wop,” “weezy,” and “shake my speezy.”  Id. at 1013.  The defendant further argued that the district court relied solely on the expert’s general qualifications without any explanation as to the methods used by the expert to interpret slang words he had not previously encountered. 
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In this patent infringement case, the patentee brought suit against a competitor for infringement of patents regarding the transmission of computer video signals.  The issue of reasonable royalty damages to the patentee was argued via use of a damages expert.  The district court held that the failure of the damages expert to discuss each and every factor relevant to reasonable royalty damages did not require exclusion of his report on the same.  However, his report was excluded on the basis of the assumption he made (contrary to applicable law) that royalty negotiations would have taken place at the time the lawsuit was filed, rather than at the time of the first infringement.
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Although the Supreme Court’s ruling in the Daubert[1] case occurred more than ten years ago and it was 1999 when the high court said in the Kumho Tire[2] case, “We live in a Daubert world,” we are increasingly seeing the impact of those decisions on case strategy.  Today, more and more attorneys are having the admission of an opposing expert’s testimony barred through a successful Daubert challenge.  Whether you are launching a Daubert challenge or defending one, this article will give you a few thoughts from an expert’s perspective for consideration during your preparation.
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