THINKING ABOUT A DAUBERT MOTION TO CHALLENGE AN EXPERT OPINION?

Posted on January 29, 2023January 29, 2023 by David Adelstein

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 (4^th 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

JUST BECAUSE I MAY BE AN “EXPERT” DOES NOT MEAN I AM GIVING EXPERT TESTIMONY

Posted on January 8, 2022January 8, 2022 by Edward Garber

On a construction project, it’s hard to argue that the involved parties — whether an architect, engineer, contractor, subcontractor, developer, etc. — are not experts in their field, i.e., they all some scientific, technical, or specialized knowledge or skill particular to their industry. However, this does NOT mean when they testify in trial, at an arbitration, or at a deposition regarding the construction project they are offering expert opinions / testimony as it pertains to that project. Testifying as to facts based on personal knowledge or involvement on a project makes you a fact witness and is different than evaluating and rending an after-the-fact opinion as to the work of others. This does not minimize your knowledge or expertise; it simply means that relative to the construction project you are involved with, your testimony is that of a fact witness and not of an expert. (It is possible to wear both the fact witness and expert witness hat, but that depends on your subsequent role in the litigation or arbitration.)

A good discussion on this premise can be found in a non-construction case, Buzby v. Turtle Rock Community Association, Inc., 47 Fla. L. Weekly D99a (Fla. 2d DCA 2022), dealing with whether a lawyer was testifying as an expert regarding his own fees. The attorney thought he should be paid for his testimony because he was a professional testifying as to his own attorney’s fees. Yet, his testimony was not actually in the form of expert testimony, but factual testimony as to his own fees. The appellate court held the lawyer was NOT entitled to an expert fee (being paid for this time as an expert), and this rationale can equally be extended to parties testifying on construction projects:

This distinction between testimony (i) describing historical facts from personal knowledge and (ii) evaluating the work of others is not limited to doctors; it applies to attorneys as well.

Thus, the question of whether a witness testifies as an expert – and is thereby entitled to an expert fee – depends not only on the witness’s credentials, but also on whether the witness actually gives expert testimony.

***

Like a treating physician, [the attorney] testified to facts within his personal knowledge about acts that he either took or supervised. Even though the acts [the attorney] described involved technical matters, [the attorney’s] recollections of them “are facts nonetheless.”

***

[The attorney’s] decision to volunteer an opinion about his own work did not transform the nature of the deposition or his purpose of testifying.

Buzby, supra (internal citations omitted).

QUICK NOTE: …BACK TO THE DAUBERT STANDARD FOR EXPERT TESTIMONY

Posted on May 24, 2019April 24, 2020 by Edward Garber

In what has previously appeared to be a game of moving chairs, the Florida Supreme Court formally adopted the Daubert standard to determine the admissibility of expert testimony. This allows Florida to move on from the Frye standard and the moving chairs associated with which standard should apply to the admissibility of expert opinions. A good discussion on the Florida Supreme Court’s recent application of the Daubert standard can be found here. The Daubert standard determines the admissibility of expert testimony / opinions in federal court and now it is officially back in Florida to apply to Florida state court litigation. This is important to know, particularly in the construction context, because many construction-related disputes utilize the services of an expert witness to render expert opinions.

QUICK NOTE: EXPERT TESTIMONY – BACK TO THE FRYE TEST IN FLORIDA

Posted on November 22, 2018November 22, 2018 by Edward Garber

Expert testimony (opinions) – very important testimony in construction disputes. Whether it is a delay claim, an inefficiency claim, a defect claim, etc., expert testimony plays an invaluable role in construction disputes. Construction attorneys work closely with expert witnesses to ensure that an expert helps render an opinion to support their client’s burden of proof (including damages) or an affirmative defense.

Recently, the Florida Supreme Court ruled that the Frye test governs the admissibility of expert testimony in Florida State courts. Notably, this was the test used until circa 2013 until the Florida Legislature modified Florida’s Evidence Code to require the Daubert test to apply to determine the admissibility of expert testimony. The Daubert test is the test used in federal courts and, quite frankly, is a more rigorous standard/test. For more information on the Frye and Daubert test, please check out this article that I wrote to summarize Florida’s transition back to the Frye test. In any event, this transition back to the Frye test can be both good and bad depending on who you represent in a Florida State court action and the expert opinion you are looking to introduce.