March 1, 2013

Daubert Lessons Surface: How Do You Manage Your Case Strategy?

Near the end of 2012, a case where the plaintiff claimed exposure to industrial chemicals caused brain cancer in her husband led to a summary judgment in favor of the defendant. Testimony from the plaintiff’s expert, a physician, was excluded, and this was a significant blow to the plaintiff’s case. I will say up front that I don’t pretend to know all of the details of the case, but the verdict and public details served as a reminder for me of how the learnings from Daubert can still apply today.
The essence of why the judge excluded the expert’s testimony was a lack of evidence or stated proven methodology as to how the chemicals caused the cancer, and which specific chemical(s) were at fault.  As most professionals who elect to also be expert witnesses for legal cases are aware, the landmark  Daubert case (Daubert v. Merrell Dow Pharm. 1993) taught that a proposed expert must be qualified in a field relevant to the subject amateur under investigation and that his testimony must be based on scientific theory  that has been tested or peer reviewed within the scientific community.  According to the judge, despite the plaintiff citing a report that showed above average number of deaths from brain cancer where the husband worked, there was no specific chemical cited to which the husband was exposed that caused the death, and the expert did not state his reasoning as to why the husband died from exposure.

Again, I have neither insight to the plaintiff’s strategy nor do I know all of the details with this specific case, but as I read a report of the judgment, I was reminded how difficult - and how necessary -  it is to have the appropriate expert(s) on your team when preparing for a technical case.  We’ve seen similar cases where the judgment went in favor of the plaintiff, where statistical evidence had more significance than knowledge of the specific chemical involved (which reinforces why I’m glad I’m not a lawyer).  

This leads to the questions, “How do attorneys field a team of experts with complementary disciplines  and be prudent with their costs?  What strategies do you employ to minimize possible Daubert challenges?”

The author is with The CECON Group, Inc., which has been providing science, engineering, and technical experts to the legal community since 1985.


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