There are some science expert witnesses, such as Ronald Melnick and David Michaels, who testify for the lawsuit industry, who seem to believe that the so-called “Daubert” motion is an immoral attempt to exclude important scientific opinions at trial.[1] Melnick and Michaels and their ilk appear to have persuaded themselves that they should have the unfettered right to influence the fact-finding process with their opinions, regardless of validity concerns.
Most lawyers approach motions to exclude expert witness opinion testimony from an adversarial perspective. They are duty bound to probe their adversaries’ expert witnesses’ opinions for legally fatal invalidity. With respect to their own expert witnesses, the last thing that lawyers wish to happen on their watch is for the court to exclude an expert witness whom they selected and shepherded in the litigation process. Lawyers do their best, but they usually admit, at least in some cases, that from the umpire’s perspective they should lose.
A recent article published by the American Bar Association (ABA) offers advice how to defeat an adversary’s so-called Daubert motion.[2] The article does not admit that sometimes the motion might be well taken, and so it fits into the Swiftean view of lawyers as “a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid.”[3]
Perhaps we should not be too harsh in criticizing an article on how to defeat a Daubert motion that fails to ask whether the opposition is epistemically warranted. Still, this recent offering seriously misleads young lawyers who seek to defeat evidentiary challenges to their expert witnesses.
The first problem is that this how-to article perpetuates the mistake that there is even a thing called a Daubert challenge. The Daubert case was decided over 30 years ago, based upon a version of a congressionally approved rule that is no longer in effect.[4] The holding of the case was simply that Congress, in enacting the original Rule 702, did not incorporate the holding of Frye v. United States into the promulgated rule.[5]
There was, of course, some interesting and important dicta in the Daubert opinion, but the authors do a disservice to the bar to repeat the dicta as though they were good law. The issue of the meaning of the original Rule 702 was addressed again multiple times after Daubert, in ways that certainly affected the oft-quoted dicta, and which led to two substantive revisions of Rule 702. We are thus now so far removed from the Daubert case itself that it really is time to stop the mindless recitation of its dicta.
What follows the discussion of the Daubert case, in this how-to article, is no less discouraging. The authors offer five tips, each of which is problematic.
“1. The Best Defense Is a Good Offense—Vet Offered Experts Thoroughly”
The authors advise that “Knowing the potential weaknesses of an expert’s background can help your client guard against Daubert challenges early by picking the right expert to avoid impeachment issues, or by allowing you to minimize the offered expert’s weaknesses through the expert’s report and opinion, or other testimony.”
True, true, and immaterial. Impeachment of an otherwise qualified witness is indeed an important consideration for trial, but it has nothing to do with Rule 702. Indeed, evaluating how expert witnesses will hold up to cross-examination assume that their testimony will be admitted. To the extent that Rule 702 requires a witness qualified by education, experience, or training, the bar for qualification is set very low. Very few Rule 702 motions challenge proffered expert witnesses on grounds that they are unqualified.
“2. Research Standards and Methodologies Commonly Used and Accepted by Courts in Similar Fact Patterns”
The authors somewhat more relevant advise that “[n]ew lawyers can also assist with defending against Daubert challenges by thoroughly researching expert methodologies that have been previously accepted by courts in similar situations. If a court has previously accepted a methodology that your expert expects to use, this will demonstrate that the methodology is reliable and commonly accepted in the expert’s given field.”
There is, of course, a sense in which this advice is true, but still the Sinatra article is very misleading. There are some cases that turn on the use of crack-pot methodologies, and these methodologies should be avoided. Most expert witnesses, however, are smart enough to dress up their opinions to appear to have been reached by the use of a recognizable, generally accepted methodology. In litigation over alleged chronic health effects, plaintiffs’ witnesses will invoke Bradford Hill’s considerations for determining whether an association is causal. Finding cases that find opinions based upon such considerations to be admissible, however will not protect expert witnesses who have not faithfully applied the considerations to the facts of the case at hand. To channel Seinfeld, it is not good enough for a restaurant to accept reservations; it must also honor those reservations.
“3. Highlight Your Expert Witnesses’ Credentials.”
Here again, the authors offer advice that is largely irrelevant to prosecuting or defending a Rule 702 motion: “Once your team decides to work with a particular expert to support your client, new lawyers can further assist in fending off Daubert challenges by highlighting your expert’s relevant credentials wherever appropriate.” Many successful Rule 702 motions have excluded the proffered opinion testimony of world-renown experts, which speaks volumes about how such experts think they can get away with sub-par work because it is only litigation.
“4. Point Out the Timing of the Daubert Challenge”
The authors advise that a Rule 702 motion might be defeated if made too late in the proceedings: “If a Daubert challenge is made at a late stage in the litigation, you may be able to overcome the challenge by arguing that your adversary has raised the issues too late in the proceedings.”
Tellingly, the authors cite no cases for this remarkable proposition, which implies that failing to make a pre-trial evidentiary challenge is a waiver of a trial objection. The proposition is wrong; there is nothing in Rule 702 that requires the motion to brought in advance of trial. There are, of course, many practical reasons why a party would wish to lodge the motion before trial, the most important of which is that the outcome of the motion might result in the entry of summary judgment and dismissal of the lawsuit before trial. Judicial and party economies shout for the motion to be made before trial, but not until after parties have the procedural ability to substitute new expert witness opinion. Additionally, a judge may set the timing of a Rule 702, which will then become part of a pre-trial order. Rule 702 is, however, a rule of admissibility, and nothing in the rule or the case law prevents a motion from being brought in the middle of a trial. Moreover, if a motion were brought before trial, and denied, the loser would have to assert the objection again, or make a motion to strike testimony, at trial in order to preserve the denial for appeal.
There is also a large difference in what may be done in a pre-trial Rule 702 motion than can be accomplished at trial. The moving party may present testimony, as well as materials that are not themselves otherwise admissible at trial, in support of the motion. Rule 702 motions can sometimes take days of courtroom time, and the trial judge has the opportunity to appreciate the nuances of what may be a complex argument about validity or sufficiency of evidence. What is glaringly wrong, however, in the authors’ argument is that pre-trial discovery really must be over for a Rule 702 motion to be effective and timely.
“5. Highlight Why the Expert’s Testimony Is Relevant and Will Aid the Fact Finder”
The authors urge opponents to stress relevancy and helpfulness. Relevancy is a fairly trivial requirement and not part of Rule 702 (or “Daubert”) itself. Helpfulness, or aiding the fact finder, is a measure of admissibility, but it stands to reason that opinion testimony that lacks a valid and sufficient foundation can never really be helpful to or be relied upon by the finder of fact.
Perhaps most egregious in this ABA article is its complete failure to note that the relevant rule is a statute that has been only recently amended. The words of the statute should be the starting point for any lawyer, young or old, as well as for judges. Given that the statute was just amended, the authors of this ABA “young lawyers” advice might well have suggested to their readers that they actually read and comply with the rule, and that they spend a few minutes reading the Rules Advisory Committee notes on why the rule was amended.
Social media platforms enjoy substantial immunity, under Section 230 of the Communications Decency Act, for the crazy stuff published by users of their platforms. I don’t know whether the ABA has potential legal liability for what it publishes, but it certainly has an ethical responsibility not to disseminate bad advice.
[1] Ronald L. Melnick, “A Daubert Motion: A Legal Strategy to Exclude Essential Scientific Evidence in Toxic Tort Litigation,” 95 Am. J. Pub. Health S30 (2005) (“However, if a judge does not have adequate training or experience in dealing with scientific uncertainty, understand the full value or limit of currently used methodologies, or recognize hidden assumptions, misrepresentations of scientific data, or the strengths of scientific inferences, he or she may reach an incorrect decision on the reliability and relevance of evidence linking environmental factors to human disease.”).
[2] Maria Sinatra and Gianna E Cricco-Lizza, “5 Tips for New Lawyers to Defeat Daubert Challenges,” Am. Bar Ass’ n (Oct. 4, 2024).
[3] Jonathan Swift, Gulliver’s Travels: Travels into Several Remote Nations of the World, Part IV, Chapter 5 (1727).
[4] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
[5] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).