Daubert: (Continued from page 5)
Another fertile area for challenge is the “because I say so” opinions given by the physicians on causation i.e., (without di- agnostic studies, the physician opines that herniated disc was present prior to the accident), biomechanical engineers and accident reconstructionists. Attacking these opinions, and requiring the expert to testify as to the methodology employed, the principles relied on and the facts that support the opinions, can often lay bare the conclusions. Logically speaking, how can a physician confronted with a previ- ously asymptomatic individual, who has had no diagnostic studies prior to injury, opine that the now present, symptomatic herniated disc/meniscal tear/torn rotator cuff etc. pre-existed the accident? These vacuous opinions on causation, overtreatment, functional overlay, etc., will not stand up to a properly executed challenge using Daubert and Rule 5-702 as a guide. It is essential that you prepare well, with the assistance of your expert, and utilize discovery to expose the gaps in or lack of foundation, qualification, meth- odology and rationale from the proferred opinion. If pursued aggressively, these opinions can be exposed for what they really are.
Resources
The following resources are available for the practitioner in finding expert help and challenging those experts offered up by the defense. 1. www.daubertonthe
web.com; An excellent and remarkably up to date tracking of published opinions on Daubert issues with statistics as to affirmance/reversal rates;
2. Expert web pages – both those that offer experts and the expert’s own page.5
3. Professional journals or other pub- lications in the field;
4. Your own expert; 5. The FRE and Maryland Rules 500 series;
6. Federal Judicial Center’s Reference Manual on Scientific Evidence, 2nd Edition; and
7. The State Justice Institute Judge’s Deskbook on the Basic Philoso- phies and Methods of Science.
Something to Think About At least one Circuit Court agrees that
Daubert cannot be used in Federal Court on a removed case, as issues of witness
5
It is essential that you look at any web page or other public information put out by an opposing expert.
competency (FRE 601)6
are governed by
state standards and therefore, if Daubert is not that state’s law, it should not apply. Legg v. Chopra, 2002 Fed. App. 0110 (6th Cir. April 3, 2002). Also, where Daubert threatens a viable state court opinion in Federal Court, both due process and Maryland Declaration of Rights chal- lenges based on the denial of a remedy available in state court by application of FRE 702/Daubert in a diversity case, may be available.
Conclusion Daubert is far too often loathed and
feared by plaintiff ’s counsel and underutilized to challenge the expert tes- timony proffered by the defendant. Careful consideration of some of the is- sues raised in this article may help the practitioner not only avoid or survive a Daubert challenge but also and employ Daubert-type challenges to negate bogus defense opinions.
6
“Every person is competent to be a witness except as otherwise provided by these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of deci- sion, the competency of a witness shall be de- termined in accordance with State Law.” FRE 601. General Rule of Competency.
WALLS REPORTING, INC. 410-647-6434
6
Trial Reporter
Spring 2003
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64