Daubert Having Little Effect on Expert Witness Consulting

In Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), the Supreme Court overhauled the standards for admitting expert witness testimony in federal court by removing "junk science" from the courtroom and introducing a new reliability test for the permissibility of expert theory and technique.

It would seem the consequence of the ruling would drive attorneys to ensure their expert's work is solidly founded in the principles of the science from which it is based. The irony is that Daubert seems to have had more of an influence on the frequency and techniques that attorneys use to challenge opposing expert's testimony instead of verifying the science being used.

According to the 2005 national Guideline study which surveyed 140 scientific experts to determine if Daubert had an affect on lawyers use of expert witnesses, the prevailing strategy seems to be focused on discrediting an opponent's expert rather than bolstering the credibility of its own expert. In addition, Daubert does not seem to have triggered considerable changes to the level of rigor used in checking an expert's background before being engaged. Overall, it appears that Daubert has not resulted in significant alterations in preparing and presenting expert testimony, but has definitely influenced the frequency and intensity of expert testimony challenges.

The Daubert factors themselves, as well as the trend in using them to prevent admission of expert testimony, is an indication that lawyers should take the time and effort to better understand the science of their cases, which will benefit them through: – Identifying appropriate and qualified experts – Evaluating the work product of experts – "Daubert proofing" experts – Challenging opposing experts

Expert Credentials Challenged More Often

Experts feel that the opposing side is challenging their credentials and testimony more often since the Daubert ruling, with 54% agreeing, 24% neutral and only 21% disagreeing.

These results confirm what has been reported earlier that in the wake of Daubert – expert opinion and credentials are challenged more often and more vigorously. However, when experts were asked if attorneys were asking them to assist in challenging the opposing counsel's expert testimony more often, only 34% of experts agreed with 43% disagreeing and 25% remaining neutral.

This indicates that many attorneys challenge the credibility of the opposing side's expert(s) without the direct assistance of their own expert(s). They may be using their own expert's reports and affidavits to challenge the opposing counsel's experts, but they don't appear to be asking their own experts to directly assist them in doing so. Many lawyers advise otherwise and indicate that experts should be made part of the litigation team.

Lawyers Aren't Fully Using the Science

According to the article "Focus On Science, Not Checklists" in the December 1, 2003 issue of Trial written by Bert Black, "lawyers either refuse to or simply cannot learn the science well enough to 'tell the scientific story'. Instead they fall back on what lawyers do best: They search for legal precedents and try to capture science in just the right checklist of [Daubert] factors."

To determine if experts have been specifically asked to modify or change their opinions or reports to better comply with the Daubert requirements, Guideline asked experts if attorneys require them to: – Add citations to references that support their theories / opinions – Demonstrate their theories/opinions are accepted in the relevant
scientific/technical/engineering communities – Show their theory/opinion was developed by independent work and not expressly for the purpose of the litigation in which they have been involved – Demonstrate that their opinions do not drift far from the science or evidence

Only a slight majority (56%) indicated that they had been asked to make such changes or additions. Those that had were evenly split in the four areas listed above. Since the remaining experts (44%) have not been asked to meet the above Daubert factors, it is a possible indication that a large segment of lawyers are still not taking the time to fully understand and use the science involved in their cases. Instead, they are likely relying on precedent as indicated by Black.

Expert Background Checks Unaffected

Experts were roughly split into thirds on whether lawyers have been conducting more thorough checks of their backgrounds with 31% agreeing, 34% feeling things have remained the same and 35% disagreeing. This mixed response indicates that Daubert has not significantly influenced the rigor used in conducting expert background checks.

No Change in "Teaching" Judges & Juries

Most experts feel that things have remained the same in their role as teachers of science and technology to lawyers, judges and juries. Guideline questioned experts if they are being asked to provide detailed explanations of science, technology and/or engineering to lawyers, judges or juries more often and 51% disagreed with that statement. Only 18% agreed with the statement and the remaining 30% were neutral. It appears that Daubert has not had an impact on the teaching role of scientific and technical expert witnesses.

Abramowitz and Bohrer noted a similar trend in their New York Law Journal article of May 6, 2003, "White-Collar Crime." In the article they state, "Daubert does not appear to have resulted in a notable change in the type of expert testimony seen in federal court…but, Daubert has brought about a radical transformation in the procedures for using and challenging expert testimony."

Expert Witness Consulting Growing

Over the past 10 years, 73% of the surveyed experts indicated their expert witness work has either stayed the same or increased and this matches the general growth trend of litigation in the United States. The main reason given for increased business was word-of-mouth referrals. Other reasons included: – Growth in litigation – Personal sales and marketing efforts – Demand for a particular expertise

Only 27% of experts indicated a decline in expert witness business. The most often cited reason for the decline was intentionally not pursuing or purposely avoiding expert witness work.

The intention of Daubert is to keep "junk science" out of the courtroom. That may or may not be working, but it certainly has not had an impact on expert witness consulting as experts indicated their business in this area has been constant or continues to grow.

Product Liability Leads the Pack

Product liability is the area that scientific, technical and engineering experts are asked to assist with most often, followed by intellectual property and personal injury. According to LexisNexis, product liability cases have surged since 2001. This and the increasing complexity of today's products likely contribute to the use of scientific and technical experts in product liability and patent litigation as well.

Top Ten Areas of Law Using Expert Witnesses

Area of Law and Number of Responses

Products Liability, 81

Intellectual Property, 75

Personal Injury, 48

Contracts, 29

Environmental Law, 18

Occupational Safety & Health, 17

Antitrust & Trade Regulation, 14

Business law, 13

Toxic Torts, 11

Commercial Law, 11

Solid Experts & Research Even More Important

Since Daubert's affect has increased the focus on challenging opposing counsel's experts, it's imperative that attorneys take the time to research the scientific or technical discipline of their cases. This will arm them with the additional knowledge needed to select the best experts, evaluate their work, better prepare them, as well as challenge opposing experts.