Attorneys and the expert witnesses they have retained are facing an increasing number of Daubert challenges. While many of these challenges are legitimate, increasingly “Hail Mary” Daubert motions are being filed by counsel. These motions have little or no chance of success, but are a drain on the resources of counsel and the court.
What can counsel do when faced with one of these Daubert motions?
Counsel has started to file for sanctions and fees in these cases.
In an Ohio case being litigated in probate court, counsel when responding to the Daubert challenge, called the motion “completely groundless and completely unnecessary and a waste of this court’s time.”
Counsel then requested sanctions and attorney’s fees under rule 40.1(g) of the court.
FRCP 11 provides:
(a) SIGNATURE. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.
(b) REPRESENTATIONS TO THE COURT. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
(c) SANCTIONS.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
Conclusion
Expect to see more motions for sanctions, attorney’s fees, and costs when frivolous Daubert motions are filed.