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A Daubert Checklist

By John D. Sear

Every year, litigators in product liability cases across the country file hundreds of motions to exclude expert testimony under Fed. R. Evid.702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert), 509 U.S. 579 (1993). A Westlaw' search for Daubert decisions yielded more than 100 results for 2009 alone and more than 1,400 since 1993. Appellate courts affirm trial court decisions ' regardless of whether the decisions exclude or admit expert testimony ' in the overwhelming majority of cases. One popular Web site has estimated that courts of appeal historically affirm more than 85% of all trial court Daubert decisions. See Peter Nordberg, http://www.daubertontheweb.com/circuits.htm (last visited Jan. 12, 2010). The high rate of affirmance no doubt stems from the deference courts of appeal give trial court Daubert decisions, as required by General Electric Co. v. Joiner, 522 U.S. 136 (1997) (holding that appellate courts must review decisions both excluding and admitting evidence under Rule 702 and Daubert under the deferential abuse of discretion standard).

If chances of reversal of an adverse ruling are slim to none, then you want to make sure the trial court makes the right decision, so you are not forced to rely upon an appellate court to correct an error. Trial courts will get it right the first time if you follow this tried-and-true checklist.

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