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Class Actions Products Liability

Daubert Motions Really Do Work

Part One of a Two-Part Article

The starting point for any successful challenge under Federal Rules of Evidence (FRE) 702 and is the form and content of the witness's disclosure under Federal Rules of Civil Procedure (FRCP) 26(a)(2). Here's why.

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Like baseball batters in a lineup, the home-run potential of any given Daubert motion varies greatly. (A Daubert motion is one seeking to exclude unqualified expert evidence. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).) Statistics go out the window with every at-bat, because statistics cannot predict individual performance. Players without a good eye for the fast ball usually do not make it to the big leagues; lawyers without the skill set to deconstruct and demonstrate the methodological flaws in a disclosure of opinion testimony may get to play in the big leagues, but they have terrible batting averages. What can be done to improve the odds?

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