Daubert and Rule 702:

Effectively Presenting and Challenging

Experts in Federal Court

January 26, 2010

Moderator: Nicole Skarstad
American Lawyer Media
nskarstad@alm.com
John L. Tate, Panelist
A member of Stites & Harbison PLLC and a Fellow of
the American College of Trial Lawyers, John L. Tate
engages in a national and regional litigation practice
that focuses on defending complex product liability
lawsuits. Based in Louisville, Ky., he has tried product
liability cases to jury verdict in eight states, but his trial
experience also includes admiralty claims, construction
and insurance disputes, intellectual property, and a
variety of personal injury matters.

Mr. Tate has been listed in The Best Lawyers in

America® since 1995 and in 2007 Kentucky Super
Lawyers magazine listed him as one of the Top 50
Lawyers in Kentucky. In addition to his trial practice, Mr.
Tate is an active appellate lawyer and supplies risk
management advice to manufacturers facing significant
product liability risks.
Overview

The lawyer who hopes to demonstrate that the

other side’s opinion testimony is inadmissible
must be prepared to defend his or her own.

Challenging admissibility of opinion testimony

requires familiarity with the witness’s field and
thorough knowledge of FRE 702, FRCP 26, and
Daubert principles.

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Presentation in four parts…

finding, recruiting, and hiring experts

developing an effective and defensible report

challenging opposing Rule 702 witnesses

conducting Daubert hearings

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At the end of each part…

summary of key points

 resources or
recommended reading
 questions

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 Historical context

pre-1993 FRCP

Galileo’s Revenge: Junk Science in the
Courtroom (1993)

Daubert v. Merrell Dow, 509 U.S. 579 (1993)

Kumho Tire v. Carmichael, 526 U.S. 137 (1999)

post-2000 FRCP 26

post-2000 FRE 702

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Part One:
Finding, Recruiting, Hiring Experts

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Part One:
Finding, Recruiting, Hiring Experts

Four essential steps:

finding the right expertise in the right

person

clearing the candidate for participation

convincing him or her to be involved

testing the witness’s knowledge and
skills

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Part One:
Finding, Recruiting, and Hiring Experts

Keys:  Make a well-informed choice.

Sources:
 Lexis/Nexis research
 Technical Advisory Service (tasanet)
 numerous on-line directories, e.g.,
expertlaw.com, witnessdirectory.com,
lawinfo.com, seakexperts.com
Questions: Stites & Harbison PLLC 9
Part Two:
Effective and Defensible Reports

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Part Two:
Effective and Defensible Reports

With one eye on the mandatory sanctions in

FRCP 37 for failing to make required
disclosures, counsel must furnish the court and
opposing parties with a written report signed
and prepared by the witness containing all the
topics and opinions to which the witness
expects to testify.

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Part Two:
Effective and Defensible Reports

To help insure effective and defensible

reports:

choose and supply relevant materials

discuss the case with the witness

play the devil’s advocate

meet the mandate of FRCP 26(a)(2)(B)

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Part Two:
Effective and Defensible Reports

Contents of FRCP 26(a)(2)(B) report:

1. A complete statement of all opinions to be

expressed and the basis and reasons for them;
2. the data or other information considered by the
witness in forming his opinions;
3. any exhibits that will be used to summarize or
support them;

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Part Two:
Effective and Defensible Reports

Content of FRCP 26(a)(2)(B) report--con’t:

4. the witness’s qualifications, including a list of all

publications authored in the previous ten years;
5. a list of all other cases in which, during the
previous four years, the witness testified as an
expert at trial or by deposition; and
6. a statement of the compensation to be paid for
the study and testimony in the case.

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Part Two:
Effective and Defensible Reports

Keys:  Strict adherence to Rule 26

 Valid “basis and reasons”
 Rule changes protecting work product
Sources: A Litigator’s Guide to Expert
Witnesses by Cecil C. Kuhne III

The Litigation Manual: Pretrial (ABA)

Questions:
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Part Three:
Challenging Opposing Witnesses

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Part Three:
Challenging Opposing Witnesses

For a well-executed challenge:

educate yourself in the witness’s field

analyze the opposing witness’s report

make a rational deposition decision

prepare a motion consistent with FRCP 26, FRE
702, and Daubert

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Part Three:
Challenging Opposing Witnesses

Education in the witness’s field requires

reading standard texts, looking for relevant
articles, developing a list of basic principles, and
learning the right vocabulary.

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Part Three:
Challenging Opposing Witnesses

Analyze an opposing witness’s report for

form and content under FRCP 26 and for the
data and methodology required by FRE 702 and
Daubert principles.

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Part Three:
Challenging Opposing Witnesses

A form and content review assesses the

report against the requirements of FRCP
26(a)(2)(B) with the knowledge that FRCP
37(c)(1) requires absolute compliance. Only
“harmless” or “substantially justified” deficiencies
should escape sanctions.

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Part Three:
Challenging Opposing Witnesses

Keep in mind that Daubert’s focus on

methodology makes the content of an expert
report a critical component. Rule 26 not only
requires the “basis and reasons” for a witness’s
opinions but also a report that “sets forth the
substance of the direct examination.” [Advisory
Committee Notes]

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Part Three:
Challenging Opposing Witnesses

Data and methodology review under Rule 702:

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the
case.
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Part Three:
Challenging Opposing Witnesses

Daubert v. Merrell Dow Pharmaceuticals,Inc.

509 U.S. 579 (1993)

1. testability
2. peer review
3. potential error rate
4. general acceptance
5. prepared solely for litigation

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Part Three:
Challenging Opposing Witnesses

“Reproducibility” is a useful approach to

effectively analyzing the data and methodology
in an opposing report.

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Part Three:
Challenging Opposing Witnesses

Tools for analyzing reproducibility include:

logic and reasoning

formulas

standards

manuals and textbooks

“common sense”

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Part Three:
Challenging Opposing Witnesses

Do not take an opposing expert’s deposition

just because you can. Ask yourself:

does the report comply with Rule 26

requirements?

are the data and information sufficient?

is the methodology apparent?

is the witness an unknown personality?

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Part Three:
Challenging Opposing Witnesses

Four ingredients of a motion to exclude

testimony under FRE 702 and Daubert
principles :

present the case intelligently

characterize the contested testimony

explain the principles supporting exclusion

furnish reassuring legal authorities

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Part Three:
Challenging Opposing Witnesses

The admissibility of expert opinions under

FRE 702 is ultimately a question of “fit” and
“reliability.”

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Part Three:
Challenging Opposing Witnesses

Keys:  Relevant knowledge

 Thorough, multi-faceted analysis
 Picking the right fight
Sources:  Reference Manual on Scientific
Evidence (2d ed., Federal Judicial
Center)

Attacking Adverse Experts

by Stephen Easton
Questions: Stites & Harbison PLLC 29
Part Four:
Conducting Daubert Hearings

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Part Four:
Conducting Daubert Hearings

Daubert hearings under FRE 104 vary

from judge to judge and jurisdiction to
jurisdiction. Courts can choose either
evidentiary or non-evidentiary hearings.

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Part Four:
Conducting Daubert Hearings

Keys to an effective hearing:

establish the ground rules in advance or at the

beginning of the hearing

stick to the criteria for exclusion

focus on “fit” and “reliability”

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Part Four:
Conducting Daubert Hearings

Cross-examination of a challenged witness:

not a full cross

brick by brick technique based on
 analysis of report and/or
 deposition testimony

focus on the shortcomings under FRE 702

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Part Four:
Conducting Daubert Hearings

Keys:  Flexibility in hearing format

 Focus on exclusion criteria
Sources:  Scientific Evidence Review:
Admissibility and Use of Expert
Evidence in the Courtroom (ABA)
 Expert Witnesses
by Faust Rossi
Questions:
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Daubert and Rule 702
Effectively Presenting and
Challenging Experts in Federal Court

Thank You

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