Experts - Daubert Motions Should Not Be Routine
Both plaintiffs and defendants in toxic tort cases routinely file Daubert motions seeking to exclude the other sides’ experts. Often, the motions are based on serious questions about the qualifications of an expert or the expert’s methodology and seek to exclude “junk science.” Such motions are without a doubt a proper application of Daubert. However, at times, a motion styled as a Daubert motion is no more than an argument that the expert’s conclusions are wrong. The United States Supreme Court opinion in Daubert specifically noted that such an argument was not the proper focus of a motion to exclude under Rule 702. As a result, courts frequently hold that attacks on an expert’s conclusions should be made through cross-examination of that expert at trial or through presentation of rebuttal expert testimony rather than by means of a Daubert motion.
A recent example of such a situation is Cannata v. Forest Preserve District, 2008 WL 4360644 (N.D. Ill. September 23, 2008), where the court repeatedly admonished counsel that the attacks on the expert should be made on cross-examination and not through a motion to exclude.
The lesson for counsel (and their clients) is to limit Daubert motions to a focused attack on the expert’s qualifications and/or principles and methodology, rather than a generalized attack on the expert and his/her conclusions. In addition, it is the rare case where all or most of a party’s experts should be subjected to a Daubert motion. However, properly focused Daubert motions can be an efficient and effective use of litigation resources.
