An expert loses a Daubert challenge. The exclusion is a defeat, but does it have to mean the end of a career? Not necessarily, because there are multiple reasons why a court may find testimony inadmissible. An attorney looking to hire an expert will not only want to know what the exclusion rate of that prospective witness is, but also why the expert was excluded.
A review of Daubert cases suggests several possibilities, including:
- The expert underperforms: The expert prepares a valuation that obviously wouldn't hold up in court. This can be avoided. Following certain rules ensures the expert is able to do a good job: don’t take assignments for which you lack the requisite experience or time; don't agree to a deposition for which you are not prepared; and don't let the attorney or client use you as a mouthpiece. Sadly, Daubert cases in which the expert did not follow the rules abound. The consequences are dire because court opinions are public documents and good attorneys will think twice about hiring someone whom the court blasted for submitting subpar work.
- The trial court gets it wrong: Instead of being a gatekeeper and scrutinizing the qualifications of the expert and the methodology used, the court looks at the underlying data, disapproves of it, and excludes the expert’s testimony. With any luck, the expert is vindicated on appeal, as was the case in the 2013 Manpower case (available at BVLaw), in which the 7th Circuit found the trial court overstepped its bounds and reversed. Whether the testimony is good enough to withstand cross-examination and convince the jury is a different issue. Chances are good that an expert facing this situation works again.
- The expert operates in a "no-win" area: One of the most difficult environments in which to work is as a plaintiff's damages expert in patent infringement cases. Concepts such as "smallest salable unit" and “apportioning between revenue from patented features in an accused product and nonpatented components” have stumped many reputable experts. The courts have acknowledged that, while they know when a reasonable royalty base calculation is wrong, they don't necessarily have a good answer for how to get the calculation right. At conferences, experts have complained about the lack of practical guidance from the courts. Experts in this area form a relatively exclusive group, and many recover from a loss and move on to another assignment.
Share your experience: How have you avoided or dealt with Daubert losses? Send us your comments!
Extra: BVR’s upcoming special report on Daubert cases presents a wealth of case law and provides an in-depth examination of the admissibility issues facing experts.
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