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How To Effectively Attack & Defend Expert Testimony: Daubert Motions & Procedure – Blog 6 Of 9

How to Effectively Attack & Defend Expert Testimony: Daubert Motions & Procedure – Blog 6 of 9

Post Series: How to Effectively Attack & Defend Expert Testimony
Without question, a successful Daubert motion can deal a devastating blow to an opposing party’s case. However, there are several considerations when determining whether to file a Daubert Motion.  Simply because an opposing expert may have weaknesses does not necessarily mean that it is wise to seek exclusion at a Daubert hearing before trial.  In Federal court, where Daubert has applied more than 20 years, the attorney should research Daubert orders already published by the District court.  This may reveal a pattern of the particular Judge.  Filing a Daubert motion could simply be a waste of your time and your client’s money.  Further, you risk aggravating the Judge, who will be wondering why you do not already know of the Daubert precedent in his or her courtroom. Perhaps a more important reason to consider whether to file a Daubert motion is that doing so will show your hand to your opponent.  If you lose the motion, your opponent will be better prepared to rehabilitate the expert as best he or she can before trial.  Additionally, after undergoing an evidentiary hearing in connection with the Daubert motion, the expert will be better prepared to withstand subsequent cross-examination at trial.  Moreover, if you do not have strong grounds under Daubert to exclude an expert, a hearing on a Daubert motion allows your opponent to educate the court as to the qualifications of the witness.  In bench trials in particular, the Daubert motion allows your opponent to give the court a preview of the strengths of his or her case before trial. In the end, it is generally better to limit Daubert motions to only those circumstances where there is a strong chance the court will grant the motion. While adoption of the Daubert standard emphasizes the court’s function as gatekeeper to prevent unreliable expert testimony at trial, be mindful that it is not a substitute for vigorous cross-examination.  Furthermore, electing to forego a Daubert motion does not waive the right to challenge the witness at trial. Section 90.705(2) of the Florida Evidence Code allows a party against whom an opinion is offered to voir dire the expert on the underlying facts or data for the opinion at trial.  The court can still exclude the expert at trial if there is an insufficient basis for the opinion.  Even where the court allows the expert to proceed to express the opinion before the jury, cross-examination of the expert may be much more effective when the expert’s weaknesses were not exposed before trial in a Daubert motion. If the trial attorney does decide to file one or more Daubert motions, the trial attorney needs to confirm the appropriate procedure for hearing the motion.  In Federal litigation, deadlines for Daubert motions are generally included as part of the Case Management Order.  Federal judges often conduct live evidentiary hearings in advance of trial to determine whether an expert will be permitted to testify.  However, it is not always necessary to have live testimony.  The parties may agree to rely on deposition testimony and submission of exhibits, such as recognized testing protocols, by affidavit.  The nature of the Daubert hearing often depends on the size and complexity of the case. Most Florida circuit courts have not yet developed specific procedures for Daubert hearings.  However, the Rules of Civil Procedure provide a mechanism to address the question of Daubert hearings.  Rule 1.200, Florida Rules of Civil Procedure, allows the court or any party to schedule a Case Management Conference.  Deadlines for scheduling disclosure of expert witnesses and Daubert hearings can be set at such conferences.  Similarly, Rule 1.201 provides for Case Management of Complex Litigation, such as multi-party construction defect cases.  Attorneys should use the Case Management rules to manage disclosure of experts and their opinions, as well as to provide for deadlines and the type of hearings to be used for Daubert motions.  Parties should confer with one another and the court during Case Management Conferences as to any uncertainties involving Daubert motion procedure. Remember that the proponent of expert testimony bears the burden of proving compliance with the Daubert standard by a preponderance of the evidence.  See Cook Ex Rel. Estate of Tesler v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1107 (11th Cir. 2005).  The proponent of the expert does not have to prove the expert is indisputably correct or even that the expert used a generally accepted theory or method as was required by FryePhoenix Ins.Co. v. Trinity Universal Ins. Co. of Kansas, 2013 US Dist. Lexis 12498, 2013 WL 459, 4529 (D.Colo. 2013).  The proponent of the expert must show that the witness has sufficient expertise, has used a methodology that is reliable, relied on sufficient facts and data, and reliably applied the methodology. Judges have latitude in making Daubert determinations and review in federal courts is by an abuse of discretion standard. United States v. Brown, 413 F.3d 1257, 1266 (11th Cir. 2005).  Florida courts held under the prior Frye standard that review of decisions to exclude an expert was de novo.  Brim, 695 So. 2d at 274.  However, at least one post-Daubert court in Florida has held that decisions to exclude an expert are subject to an abuse of discretion standard.  Baan v. Columbia County, 215 Fla. App. LEXIS (1st DCA Dec. 8, 2015).

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