When you receive an expert opinion, one of the first things you are considering is whether it is worth filing a Daubert motion / challenge. A Daubert motion is a generally a pretrial motion you are using to challenge the admissibility of the expert opinion. Keep in mind this deals with the admissibility, not the credibility, of the expert opinion. A Daubert motion is based on three prongs that must be answered: 1) is the witness qualified to render the expert opinion?; 2) is the expert’s opinion reliable?; and 3) is the expert’s opinion relevant?.
A Daubert motion is premised after Federal Rule of Evidence 702 that provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The qualification prong is the foundational prong. It is based on whether the witness has the “knowledge, skill, experience, training, or education” to render to expert opinion. It’s a more liberal standard to determine whether the expert is qualified to testify competently as to his/her opinions. “This inquiry is not stringent, and so long as the expert is minimally qualified, objections to the level of the expert’s expertise [go] to credibility and weight, not admissibility.” See Clena Investments, Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653 (S.D.Fla. 2012) (internal quotations and citations omitted).
The reliability prong is generally the prong where focus is placed. Focus is whether the expert opinion is “based on scientific, technical, or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods.” See Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir. 2017) (internal quotation and citation omitted). “Under the reliability requirement, the expert testimony must have a reliable basis in the knowledge and experience of the relevant discipline. To ensure reliability, the Court assess[es] the [expert’s] reasoning or methodology, using as appropriate such criteria as testability, publication in peer reviewed literature, and general acceptance.” See JH Kelly, LLC v. AECOM Technical Services, Inc., 2022 WL 1817415, *3 (N.D.Ca. 2022) (internal citations and quotations omitted). There are various guideposts the court uses to determine the reliability of the opinion and there is not necessarily a one-size-fits-all model applied universally to all experts.
The relevance prong is simply based on whether the expert’s opinion will assist the fact-finder to understand evidence and/or determine an issue in dispute. See JH Kelly, supra (internal citations and quotations omitted).
These prongs allow the trial court to serve as a gatekeeper to ensure the fact-finder (jury) hears admissible expert opinions. Just remember, a Daubert challenge is based on these three prongs: qualification, reliability, and relevance. Thus, when making a Daubert challenge, you want to focus on which of the prongs you are using to challenge the admissibility of the expert’s opinion. It could be one prong. It could be them all. Again, the focus is on the admissibility, not on the weight of the expert’s opinion because trial courts will view the weight of the expert’s opinion as a credibility issue that can be attacked through rigorous cross-examination.
JH Kelly is an example of a construction dispute out of the Northern District of California where a prime contractor and a subcontractor each filed Daubert motions. There were multiple experts and numerous challenges. Most of the Daubert motions were denied as the trial court found they were really credibility arguments, not admissibility arguments. However, there were a couple of rulings worth pointing out here.
The subcontractor moved to strike expert opinions from one of the prime contractor’s experts that was opining that the subcontractor “is not entitled to recover its: (1) post-project completion damages; (2) change management support fees; and (3) costs for changed work due to untimely and insufficient notice based on the Subcontract provisions….” The subcontractor claimed these opinions were a question of law and nothing more than attorney argument masked as an expert opinion. The trial court agreed.
[T]he Court agrees with [subcontractor] that although these opinions are purportedly based on [expert’s] reading of the Subcontract, they are at bottom attorney argument dressed up as expert opinion. [Expert’s] opinion that various provisions of the Subcontract preclude [subcontractor] from recovering its costs is just straightforward contract interpretation, and as such it permissibly treads on ultimate issues of law.
JH Kelly, supra, at *12.
The general contractor wanted to strike one of the subcontractor’s experts that was opining on lost productivity damages due to excessive changes to the project. The expert used four different methods to calculate lost productivity (e.g., measured mile, IBBS Curves, MCAA factors, and Modified Total Cost). The general contractor claimed all such calculations were not reliable – they were subjective and unsubstantiated. However, the court found that the flaws in the expert’s analysis go to the weight of the opinion, and not on admissibility, and can be vetted through incisive cross-examination. “The major theme here is that while the Court agrees that some of [contractor’s] criticisms of [expert’s] analysis have significant force, it will ultimately allow the jury to determine how much weight to assign his opinions.” JH Kelly, supra, at *6.
There are numerous considerations, including strategic, when filing a Daubert motion.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.THI