Daubert and like cases: a summary

Summary of This Article.

In the federal courts and in those state courts that follow Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993) the admissibility of an experts opinion testimony is dependent on meeting certain criteria. This article is a practical and concise description of what is required in getting an expert’s opinion admitted (or excluded) under the Daubert line of federal cases and the similar cases in the various states.

To make this a working document for busy lawyers and expert witnesses, I first state my conclusion in a form usable in the office and courtroom. I call it the “Eight Eligibility Elements”. The conclusion is drawn from various cases and texts, some of which are discussed in this article.

After stating my shorthand version of a nearly universal “elements of admissibility” I proceed with a history and more extended description of the gatekeeper function and what is necessary to get an expert opinion in (or keep it out).

Finally, I include some observations about trial procedures and tactics. Additionally, appendixes are provided which contain an exhaustive admissibility/exclusion checklist, a list of principal cases for further reading, and a proposed pre-trial order regarding Daubert style challenges.

In recent years many lawyers have seen their case collapse because their expert’s opinion was excluded from evidence. You do not want to be one of those lawyers! (See “Expert Flunking the Gatekeeping Tests – the Consequences”.)

The Admissibility Laundry List which is a part of this article is one of the attorney aids found in Bucklin’s trial notebook systems. Attorneys may want to purchase either (1) the short and quickly useable trial notebook version known as LitigationReady!™ in downloadable e-book format at TrialNotebooks.com or (2) the more extensive two volume book Building Trial Notebooks™ at James Publishing.

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