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Betz and Shaw: How to get your expert’s testimony admitted in federal court

August 8, 2018
betz-tracy-mug Betz
shaw-brittany-mug.jpg Shaw

As most of us know, in 1993, the Supreme Court set forth new guidelines on the admissibility of expert testimony, the “Daubert standard.” In Daubert, the court put a spotlight on Federal Rule of Evidence 702 by requiring future courts to evaluate the admissibility of expert testimony against the federal rule. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702 focuses on four key elements: (1) the expert’s knowledge; (2) whether the testimony is based on sufficient facts or data; (3) whether the testimony is the product of reliable principles and methods; and (4) whether the expert reliably applied those principles and methods to the facts. Today, courts must act as a “gatekeeper” to ensure the expert’s testimony is not only relevant, but reliable, evaluating the following: (1) the expert’s qualifications; (2) the reliability of the expert’s methodology; and (3) the relevance of the expert’s testimony. So, what should a litigator do to protect his or her expert from a Daubert challenge?

1. Make sure yourexpert is qualified

When engaging an expert, ask yourself, “What knowledge, skill, practical experience, training or education does this person possess that would lead me to believe they are an ‘expert’ on a certain topic?” Unfortunately, there is no absolute rule that determines what is required to qualify an individual as an “expert” in a given field. Evaluate your potential expert’s resume or CV. Do your own research. Review any past publications, previous depositions and trial transcripts, and obtain copies of licenses and certifications. Determine if the potential expert has ever faced a Daubert challenge and the result of that challenge. Be assured, your opposing counsel will do this research. You do not want to be surprised at deposition with information that your expert has been excluded many times before.

2. Focus on the method

The reliability of an expert’s methodology is one of the most litigated aspects of the Daubert challenge. Follow this 10-step checklist to see how your expert stacks up against others in the field: (1) whether the expert’s theory has been tested; (2) whether the expert’s theory has been subjected to peer review; (3) whether the expert’s theory has been evaluated in light of potential rates of error; (4) whether the expert’s theory has been accepted in the relevant scientific community; (5) whether “maintenance standards and controls” exist; (6) whether the expert’s testimony relates to “matters growing naturally and directly out of research they have conducted independent of the litigation,” or developed “expressly for purposes of testifying”; (7) whether the expert has unjustifiably extrapolated from accepted premise to an unfounded conclusion; (8) whether the expert has adequately accounted for an obvious alternative explanation; (9) whether the expert is being as careful as he or she would be in his or her regular professional work outside the paid litigation consultation; and (10) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. Krik v. Exxon Mobil Corp., 870 F.3d 669, 674 (7th Cir. 2017); Fuesting v. Zimmer, Inc. 421 F. 3d 528, 534-35 (7th Cir. 2005). While this 10-step list is simple to follow, it is neither exhaustive, nor mandatory. C.W. ex rel. Wood v. Textron, Inc., 807 F. 3d 827, 835 (7th Cir. 2015). In fact, this checklist is flexible; courts may consider one or more of these factors when determining that an expert’s testimony is reliable. See Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137, 141 (1999). Create your own checklist and see how your expert fairs under all 10. Search previous Daubert challenges decided by your judge to see what steps, if any, he or she relies on more heavily. If all else fails, ask, “Is there a rational connection between the data provided and the opinion produced?” If so, on to step 3.

3. Ask yourself:Do they provide more?

Will the expert’s testimony “assist the trier of fact to understand the evidence or to determine a fact in issue?” Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). Opposing counsel may attempt to argue that your expert’s opinions are “common sense” observations. The expert’s testimony does not assist the trier of fact if the jury is able to evaluate the same evidence and is capable of drawing its own conclusions without the introduction of the proffered expert’s testimony. Sanders v. City of Chi. Heights, No. 13 C 0221, 2016 U.S. Dist. LEXIS 109733, at *13 (N.D. Ill. Aug. 18, 2016). To conquer this step, consider why you wanted to hire an expert to begin with. Is there something the expert can provide that a jury would not understand or know otherwise? In other words, do they provide something more? Clearly define the expert’s role in your case and why the testimony is helpful to pass this third and final step of a Daubert challenge.What about Indiana state court?

Currently, Indiana courts do not explicitly follow the Daubert standard. Malinski v. State, 794 N.E.2d 1071, 1084 (Ind. 2003). The Indiana Evidence Rules differ from the federal rules in that, “(e)xpert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.” However, “[t]he concerns driving Daubert coincide with the express requirement of Indiana Rule of Evidence 702(b) that the trial court be satisfied of the reliability of the scientific principles involved.” See McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997). While the Indiana Supreme Court finds Daubert “helpful,” it is not controlling.

Will Indiana adopt the Daubert standard in the future? Without a change in Indiana Rule of Evidence 702(b), it seems unlikely. While Daubert does not control in Indiana state court, litigators should always keep the standards in the back of their minds.

By following these simple rules, even in Indiana, every litigator will be able to get past the “gatekeeper.”•

Tracy N. Betz — tbetz@taftlaw.com — is a partner and Brittany L. Shaw — bshaw@taftlaw — is an associate in Taft Stettinius & Hollister’s litigation group. Opinions expressed are those of the authors.

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