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Daubert Exclusions ‘Haunt,’ But Don’t Ruin, Experts
By Bruce Kaufman ( bkaufman@bna.com)
Thousands of highly-regarded
expert witnesses have been found
unreliable and been barred from
testifying by judges under the
US Supreme Court’s 23-year-old
Daubert admissibility test, costing
hundreds of millions of dollars to
litigants and often crippling cases.
But what happens to the reputation and employability of these
cast-aside engineers, scientists, and
medical professionals? These experts
sometimes charge US$500 or more
per hour for their services, and serve
as the lifeblood in complex litigation
involving product liability, intellectual property, employment law, and
professional negligence.
Interviews with leading litigators,
service providers, academics, and
expert witnesses shows some experts
are able to recover from publicized
judicial attacks on their qualifications or flaws in their methodology.
Less fortunate experts find their
reputations forever tarnished after
an exclusion under Daubert v.
Merrell Dow Pharms., 509 U.S.
579 (1993), along with their pros-
pects for further employment as
expert witnesses. Daubert requires
trial judges to ensure expert testi-
mony be reliable and the product
of a sound methodology before
being admitted for a trial.
Exclusions ‘Haunt’ Experts
Exclusions under the Daubert ad-
missibility test can be “devastating to
an expert’s credibility if the exclusion
is total, and related to the substance
of the expert’s testimony,” Mike Talve
told Bloomberg BNA. Talve is CEO
of the Expert Institute in New York,
a provider of expert witness services
to law firms in high-profile class ac-
tions and other cases.
Tom Peisch, a partner at Conn
Kavanaugh in Boston, told Bloom-
berg BNA even a single judicial
exclusion can be a “fatal blow,”
not only to the expert’s role in the
particular case, but to the expert’s
“professional reputation and em-
ployability in other matters.”
Peisch, a defendant’s attorney, said
he is “very reluctant to hire an expert
whose opinion has been excluded un-
less there are mitigating factors that I
can explain to a client, judge, or jury.”
Plaintiffs’ attorney Thomas V.
Girardi, a founding partner at Gi-
radi & Keese in Los Angeles, said
that while an expert can recover
from an exclusion, the “truth is, it
will follow him or her forever.”
Defendants’ attorney John Sear,
Daubert requires trial judges
to ensure expert testimony be
reliable and the product of a
sound methodology before
being admitted for a trial.
