Daubert Expert on Risk Assessment for Expert Witness Challenges

By Steven Babitsky, Esq.

Expert witnesses of all specialties are facing an increasing numbers of Daubert challenges. The admissibility rate varies by area of expertise. Physicians, when testifying in certain areas, have approximately a 50% exclusion rate with many financial experts (fraud 52% and intellectual property 51%) a little higher.[1]

What can and should expert witnesses do to judge their risk of exclusion? Here are 10 questions expert witnesses will want to ask themselves prior to accepting an assignment.

Is this a novel, high profile, or very large significant case?
If so, the risk of a challenge is very high.
Do experts in your field routinely get Daubert challenged?
Experts in many fields routinely get challenged. You will want to know the frequency of challenges in your area of expertise.
Are you at all outside your core area of expertise?
If you are, you are at increased risk of exclusion.
Are the theories/opinions you would be offering new/novel/or outside the mainstream of accepted opinions?
Offering new/novel theories substantially increase your risk.
Is your methodology generally accepted in your field?
If you are offering new methodology or one that is not generally accepted, your risk is high.
Is retaining counsel new, inexperienced, or not helpful?
Inexperienced counsel may not be willing or able to effectively anticipate and deal with Daubert challenges.
Are you on the “wrong” side of the case?
The weaker the facts, the more likely the presiding judge will feel free to exclude experts.
Have you been “Dauberted out” (totally or partially) previously?
A weak Daubert track record will work against you. on the other hand, successfully facing prior challenges can work to your advantage.
Are you unable to clearly articulate the methodology you will be using in this case?
Inability to explain and clearly and convincingly articulate your methodology puts you at substantial risk.
For whatever reason, do you have a “gut feeling” this case is inappropriate for you?
If you are outside your true area of expertise, or for whatever reason you feel uncomfortable about testifying in a case, you are much more likely to be excluded.