How concerned should expert witnesses be when they are challenged in a Daubert hearing? These experts need to be concerned and protect themselves according to the US Department of Justice Attorney Adam Bain.
Here is what Attorney Bain had to say on the subject.
Q. Attorney Bain, why are Daubert hearings becoming increasingly important for expert witnesses?
Daubert hearings are increasingly important because courts are more frequently using these hearings to scrutinize closely the reliability of expert witness opinions. If a court excludes a party’s proposed expert testimony after a Daubert hearing, then a case may be resolved without the need for trial, either through summary judgment or settlement.
Q. What can expert witnesses do to protect themselves from Daubert disqualifications?
An expert should understand the legal standards for admissibility of expert witness opinions. Based on these standards, I have four tips for experts to avoid disqualifications: (1) ensure that you have enough information to reach your opinions; (2) ensure that you follow the core principles and methods in your field in reaching your opinions; (3) do not create a novel methodology to arrive at your opinions; and (4) have a detailed and well-founded explanation of how and why an application of a reliable methodology to the facts led to your expert opinions. I will cover the legal standards for admission of expert testimony and these tips in detail at the SEAK conference in May.
Q. What should expert witnesses do when faced with a Daubert challenge?
Work closely with the attorney who will be responding to the Daubert challenge to help the attorney understand in detail: (1) why the information in your possession was sufficient for you to reach your expert opinions; (2) why the methodology you employed was a reliable methodology in your field to apply to the case; (3) why and how an application of the methodology to the fact of the case led to the conclusions you reached.
Q. How can experts who have had a Daubert disqualification best deal with it in future cases?
Confront the disqualification forthrightly. Explain why your opinions for the current case are not unreliable for the reasons that led to exclusion in the earlier case. Explain the circumstances that led to the disqualification in the earlier case. Never try to hide the disqualification, and it is usually a bad idea to argue that the court made a mistake.
Attorney Bain will be speaking at the SEAK National Expert Witness Conference to be held on May 3-4, 2014 in Orlando, FL.
Disqualification of Experts: Daubert and Beyond
Adam Bain Esq.
One of the worst fears of expert witnesses is being challenged and disqualified from testifying. Attorney Adam Bain will discuss what every expert witness should know about challenges to their qualifications and methodologies. He will explain the standards for admission and exclusion of expert testimony, and demonstrate, with examples, how experts can best protect themselves from successful challenges. Mr. Bain will offer practical suggestions for experts to assist them in avoiding challenges to their testimony and to guide them when their testimony is challenged, including how to work with counsel in formulating opinions and responding to challenges.
Adam Bain, Esq. has been an attorney in the United States Department of Justice for over 25 years. During that time, his primary responsibility has been defending the United States in toxic tort litigation. Mr. Bain’s cases typically involve many claimants who are seeking millions of dollars from the United States for personal injuries and property damages. The litigation usually involves complex legal, factual, and scientific issues. During his career, Mr. Bain has represented the United States in hearings, trials and appeals in federal courts throughout the country. In his litigation, Mr. Bain has worked with some of the nation’s top experts in toxicology, epidemiology, psychology, hydrogeology, real estate appraisal, and environmental sciences. He is a frequent faculty member at the Department of Justice’s National Advocacy Center where he often lectures on finding and using expert witnesses. He also often writes on expert witness issues. Mr. Bain obtained is B.A. (1983) from Purdue University and his J.D (1986) from Indiana University Maurer School of Law.