Articles Posted in Daubert

Franchise executive Don Sniegowski comments on the franchise case study by attorney Bruce Schaeffer in which Schaeffer concludes that one of the weakest links in franchisee court cases is often their own expert’s testimony.

In Challenges to the Admissibility of Expert Financial Testimony, attorney Bruce Schaeffer followed all federal and state cases involving the admissibility of expert financial testimony from 2005 through 2008. He discovered that challenges involving expert witnesses were successful some 57% of the time, meaning that only 43% of of proposed experts were allowed to testify. And, when expert testimony is successfully challenged, it almost always means the franchisee’s case will fail.

According to Schaeffer, the key point in a franchise dispute is to prove damages. For that, a franchisee needs an expert. But their proposed witness will never make it to the stand if he cannot get by the Daubert test, named after the U.S. Supreme Court case that determined that for expert testimony to be admissible, it must meet a minimum “threshold” level of credibility, namely:

In How the Daubert-Kumho rulings Effects Medical Expert Witnesses, internal medicine expert witness Dr. Perry Hookman writes:

Daubert teaches that one should not just rely on the credentials of the medical expert. The medical expert in Federal court, and increasingly in the State courts, must be more than credible, as evidenced by Board Certification. Testimony must continue to be based on medical knowledge within the physician’s expertise. But whenever possible, the medical expert must currently also support all methodology and opinions with objective documentation and “reliable methodology”. The important questions now are: Has the expert’s theory or technique in question been tested? Has it been subjected to peer review and publication? What is its error rate? Do standards exist? Is there widespread acceptance in the medical community? In summary with what learned treatises from peer reviewed medical publications can the medical expert document and thus support his opinions or theories? The Daubert test applies to all scientific evidence. (509 U.S. at 593,n.11) The Daubert-Joiner-Kumho trilogy has in practice raised the bar for admissibility of expert testimony in every category. Additionally it is difficult if not impossible, for even an experienced medical clinician or practitioner to offer an expert opinion based on technical or specialized knowledge obtained through experience or education alone.

When hiring an expert witness, make sure to allow time to research their background. Waiting until the last minute to hire an expert could be trouble. An important factor is an accurate assessment of an expert’s qualifications history in court. There is compelling statistical evidence to suggest that experts who have been allowed to testify after previous attempts to exclude them (i.e. who have passed “Daubert muster”) are more likely to withstand similar challenges in the future. Just as importantly, knowing the opponent’s expert’s qualification history can be valuable in challenging that expert, or in developing a strategy to attack the expert’s methodology and credibility. The “Daubert Tracker” (available at www.mdexonline.com) is a good place to start. Its primary focus is on the researching of the “evidentiary gatekeeping” history of experts.

Defendant Marie Lindor, who was sued by the Recording Industry for allegedly infringing on their exclusive rights by downloading, distributing and/or making available for distribution certain sound recordings using an online media distribution system, has moved to exclude the trial testimony of the RIAA’s security expert witness, Dr. Doug Jacobson. Ms. Lindor argues that the expert witness‘ deposition testimony establishes that his trial testimony could not meet the standards for reliability of expert testimony prescribed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993) and Federal Rule of Evidence 702.

The interesting letter brief can be read in its entirety here: letter brief

Given the extreme importance of expert testimony to litigation, is the reliability test for expert testimony set out in Daubert v. Merrell Dow Pharmaceuticals the most radical and consequential change in the modern law of evidence? Before Daubert, most courts in most circumstances required only that an expert witness be at least marginally qualified to testify on the subject at hand, and that his testimony be relevant to an issue in the case. Many courts applied the general acceptance test set out in Frye to limited categories of scientific evidence, primarily in criminal cases. Even in Frye jurisdictions, generally testimony was allowed in most areas of expertise.

Many argue that the Daubert standard takes the issue of sufficiency of evidence and turns it into issues of admissibility. (See Richard D. Friedman: Squeezing Daubert Out of the Pciture) However, aren’t jurors and fact finders wise enough not to be misled by expert’s opinions? Those who ask this question would certainly point out that there are not similar reliability standards for lay witnesses, and for other types of evidence.