Page 24 - MCT November 2020

The Daubert Decision
“Today’s Nightmare Challenge

to Expert Testimony”
By
James T. Born
October 4, 2020

Today, those of us that conduct investigations, and then present our
professional opinions in courts of law, are faced with a new threat. It is
called the “Daubert Challenge”. To most of us these words are puzzling
and foreign. With that understanding, you had better read what I have to
say, and take good notes, if you intend to stay in the business of investigating. I have been an
investigator for just over 52 years, having served as a city, county, and federal law enforcement
Officer; and as a licensed private investigator in California and Las Vegas Nevada. Having said
that, I thought that I have seen it all, boy was I mistaken. This nightmare, as I call it, started in
1993, in a case before the United States Supreme Court entitled Daubert v. Merrell Phar-
maceuticals, Incorporated 509 U.S. 579 (1993).

Since the handing down of this decision by the United States Supreme Court; originally as a
challenge to expert testimony in a pharmaceutical dispute; it has gone through countless
referencing, litigation, and minute changes, that collectively and significantly, changed how we
testify in all matters of opinions and conclusions; we may have in whatever type of
investigation we are testifying to. Gone is the day that you can stand before a jury and freely
give your opinion as to what happened in the case before you. Today we carry antacid tablets
in our coat pockets, praying before and during the trial that we do not hear an attorney shout
out the words “Daubert Challenge”. That is your nightmare. The Daubert Challenge may come at
any time before trial and during trial. It may be presented in a separate motion, in a post-trial
motion, as part of a summary judgment, as a Motion in Limine, or as an objection made at the
time testimony is given. When you hear the words “Daubert Challenge” your sphincter muscle
(“O” ring) will slam shut, and it will be time to pop an antacid and change your undergarments;
because from here on out your life is likely to be miserable.

So exactly what is a “Daubert Challenge”? It is a motion that seeks to exclude an expert’s
testimony on the basis that the attorney believes it to be unreliable or relevant under Rule 702
of the Federal Rules of Evidence. It is a legal mechanism that opposing council can use to
discredit the validity of your testimony and have it excluded. Such a challenge is generally a
deciding factor in whether you win or lose your case. The Daubert Challenge is designed to
challenge an expert’s qualifications and an expert’s methods. When the challenge is presented
the judge handling the case must (by law) then become “The Gatekeeper”. That judge, whether
or not he or she is knowledgeable about the subject matter, will most likely in chambers, with a
stenographer, and with the opposing councils present, ask you to present your qualifications,
to encompass your training and experience, relative to what you are going to testify to. If there
is acceptance on both sides that you have the training and experience; You will be asked a
series of required questions; among them; “how did you reach your conclusions, what
methodology was used, what expert testing did you employ, what is your rate in error in
testing. were any controls in place, was the data properly interpreted and other questions? If
you fail to be vetted by the Gatekeeper, you may still be allowed to testify as to what you did or
observed, however, you will be prohibited from offering any opinions or conclusions. In its
reality, the Daubert Challenge is a ploy that the opposing council will often use when they are
worried about the strength of their defense. By offering up the challenge, it buys them more
time. It allows them to be present, in a sort of sneak preview, to hear, in advance of the trial,
exactly what you intend to testify too. This also allows them to weigh in your qualifications
against their own expert’s qualifications and if necessary, bring in an expert that has more

24