Thursday, June 9, 2011

Daubert Revisited -- The Role of the Trial Judge

By John DiMotto

It has been a little over four months since Daubert became the "law of the land" in Wisconsin with respect to the introduction of expert testimony. To date, I have yet to have a case where any lawyer has made an issue out of any expert testimony. It is my sense that unless the science/topic/subject matter is really unusual that Daubert will not be an issue that will take up too much time in the litigation. However, that remains to be seen. Therefore, it is very important that every judge understand the critical role the judge has in the resolution of Daubert motions.


I believe that the admission of expert testimony under Daubert requires three conditions precedent -- that is, three levels of "Qualifications."

1) The expert witness must be "qualified" to discuss the science/topic/subject matter. The expert must have special expertise by education, training or experience.

2) The science/topic/subject matter must be "qualified" for admission. This requires that the principles and methodology must be reliable and valid enough to be considered by the trier of fact.

3) The expert witness must have properly applied the "qualified" science/topic/subject matter principles and methodology to the facts in the case.

Daubert Test

The test under Daubert is not the correctness of the expert's conclusions but the soundness of the expert's methodology. Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010). The correctness of conclusions and the weight to be given to the conclusions is a consideration for the trier of fact. This is not to be a concern of the court.

Role of the Court

The role of the court when addressing a Daubert issue is to analyze the expert testimony in the context of its field to determine if it is acceptable science. Boyd v. City and Cnty of S.F., 576 F.3d 938 (9th Cir. 2009). The term "science" is a broad concept. It encompasses technical science as well as street science. The role of the court when addressing a Daubert issue is a flexible one. its overarching subject is scientific validity. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1973). Trial judges must understand that their role is truly one of serving as a gatekeeper. Trial judges are to be concerned with reliability. Overall relevancy is reserved for the trier of fact. Daubert does not take the case out of the hands of the attorneys. Vigorous cross examination, presentation of contrary evidence and careful instructions on the burden of proof are traditional and appropriate means of attacking shaky but admissible evidence. These attorney "tools of the trade" are the safeguards. Daubert, supra. If the trial judge determines that the science/topic/subject matter is valid, the expert is qualified and the expert has properly applied the principles and methodology to the facts, the test is met and the evidence is admissible.

How the Court Should Exercise its Powers

In Wisconsin, Daubert issues are to be addressed by the trial court as preliminary questions of fact under 901.04. I believe that this is a determination that can be made one of four ways:

1) Pretrial paper review. (i.e. Summary Judgment)

2) Pretrial evidentiary hearing.

3) At trial.

4) No hearing needed (where there is not dispute as to the expert, the science/topic.subject matter or expert's application of principles to facts)

Each case is different and the decision as to how to make the determination of fact rests within the sound discretion of the trial court.

Scheduling Orders

It will be critical for the trial judge to craft a scheduling order to address Daubert. I believe that the trial judge should have a six point order in order to address and resolve a Daubert motion in an orderly fashion.

1) Set a deadline for disclosure of plaintiff's experts, submission of written expert reports with supporting materials. The submissions should:

a) Set forth the expert's ultimate opinions.

b) Set forth the basis of the expert's opinions.

c) Address each of the Daubert factors and the Committee Comments to the 2000 Amendments to the Federal Rules factors.

d) Provide any case law where the science/topic/subject matter has previously been deemed reliable and admissible for Daubert purposes.

e) Set forth counsel's position with respect to how the court should make its 901.04 determination.

2) Set deadline for completing discovery of plaintiff's experts.

3) Set deadline for disclosure of defendant's experts, submission of written expert reports with the same supporting materials required of plaintiff's counsel.

4) Set deadline for completing discovery of defendant's experts.

5) Set deadline for filing of Motions in Limine to exclude Daubert evidence.

6) Set status date to address how the court should resolve the Daubert Motions in Limine.


It is incumbent upon the trial judge to take control over the Daubert issue at the scheduling conference in order to keep control over the case. It is the role of the attorneys to educate and persuade the trial judge on the ultimate Daubert decision to be made. It is the role of the trial judge to ensure that the attorneys provide the court with the tools needed to resolve the Daubert issue in the case.

No comments:

Post a Comment