Gaining Leverage by Challenging Expert Opinions Under the "New" Daubert Standard!


(posted 10/11/13)


Just as sure as the sun will rise tomorrow, plaintiff’s counsel will shop until they find the right “hired gun” to provide the desired expert support for their claims.  All too often, plaintiffs introduce expert opinions at trial which were not aggressively challenged by the defense. With the recent and continuing progeny of the Sixth Circuit case of Smelser v. Norfolk Southern Railway Company, defense counsel should consider challenging whether a plaintiff’s expert’s opinion should be permitted to be introduced at trial as not “reliable” and “relevant.” No longer are expert opinions simply accepted by the court just because an expert went to Harvard or Yale, the rubberstamp seeming to provide legitimacy to his/her opinion on its face! Defense counsel can develop tremendous leverage to drive down the value of a claim by understanding this effective method of attacking the opposition’s expert.


In Daubert, the Supreme Court emphasized that federal judges maintain a “gatekeeping responsibility” to ensure that admitted scientific testimony is both, amongst other factors, “relevant” and “reliable.” These two standards invite significant argument and interpretation for the defense to attack the admissibility of a plaintiff’s expert’s opinion.  The Supreme Court has noted four factors of particular importance to determine the “reliability” of an expert opinion: testability, peer review, rate of error and acceptance.  If the reliability inquiry is satisfied, the trial court must next ascertain whether the proposed scientific testimony is “relevant.” This relevance inquiry requires the court to look for a “close fit” between the tested theories relied upon by the expert, and the ultimate conclusions reached.


The Smelser court reversed in favor of Norfolk, and held the plaintiff’s biomechanical engineer should not have been allowed to testify because the expert’s opinions were not “reliable.”  So too, in any claim heavily bottomed upon expert testimony, the defense should strongly consider challenging the “reliability” and “relevancy” of the opinions. To that end, defense counsel should initiate the Daubert challenge early, by motion practice on the issue, and again at trial to preserve the issue for appellate review, before simply allowing the introduction of the expert’s testimony.


 If you would like a copy of the Smelser opinion, or have any questions related to the particulars of the “reliability” or “relevancy” standards mentioned above, please call Gary Shendell.


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