June 21, 2016 Articles

Picking Up the Pieces: Litigating after the Big Daubert Ruling

By Joe Winebrenner and Jeff Wojciechowski

Expert evidence is a critical component of complex civil litigation. It is almost always a required element of the plaintiffs’ prima facie case and plays a significant role at mediation, summary judgment, and trial. District court judges are tasked with the duty of ensuring that an expert is appropriately qualified and holds opinions founded on reliable methodologies relevant to the case. Motions to exclude expert testimony, made pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), are the mechanism that parties employ to ask the court to perform this gatekeeping function.

The Daubert order can be a significant turning point in any case. It can deprive a party of evidence required to support its claims or allow testimony a party never anticipated needing to combat. In the wake of a Daubert order, regardless of its outcome, litigants need to consider their steps carefully to maximize the advantage or mitigate the damage, whatever the case may be. This article discusses some best practices for litigating in the aftermath of the Daubert ruling.

Regardless of the outcome, litigants on both sides of the bar have a variety of options in responding to a court’s Daubert order.

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