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.

The Judge Excludes Your Expert—How to Pick Up the Pieces?
You have invested significant time and resources on expert witnesses, discovery, and trial preparation. Then the court issues an order granting your opponent’s Daubert motion, and sweeps the rug from beneath your feet. This section discusses some options for litigants in recovering from an adverse Daubert ruling.

Read the order carefully and recalibrate your case. First, read the court’s order carefully and assess its impact on your case. Determine whether the order deprives you of evidence on an essential element of your client’s claims or defenses or whether it steals the thunder from the case themes you developed for trial. If it undermines your case in chief or case themes, then you must recalibrate your trial plan based on the evidence that remains available to you.

In addition, if the Daubert order modifies the likelihood of success at trial or the potential amount of damages/exposure involved, your client may be willing to pay more (or accept less) money to settle the case. It is important to reassess your position on settlement at this time.

Consider seeking leave to supplement. In some cases, an adverse Daubert ruling may be equivalent to granting summary judgment for the opposing side. In such cases, you may want to seek the court’s leave to supplement your case with a new expert.

In re Zoloft, MDL No. 2342, 2015 U.S. Dist. LEXIS 1598 (E.D. Pa. Jan. 7, 2015), demonstrates that such an outcome is possible. In that multidistrict litigation (MDL), plaintiffs’ experts were essential to proving the element of causation. However, the court excluded as unreliable causation testimony proffered by every plaintiff’s expert. Id. at *1–2. The plaintiffs responded by bringing a motion to supplement their case with an additional expert. Id. at *3.

In a rare move, the court allowed the supplemental expert opinions. The court analyzed five factors that determined whether it should allow the new expert:

1. prejudice or surprise to the opposing party;

2. the ability of the opposing party to cure the prejudice;

3. the disruption of the orderly and efficient trial of the case;

4. bad faith or willfulness; and

5. the importance of the evidence


The court was particularly persuaded by the fact that this case was an MDL, which afforded the court broad discretion for case management. Id. at *6 n.12. Moreover, the MDL setting limited the prejudice to the defendants because they would have to depose the new expert as part of additional cases down the pipeline anyway. The evidence was also critically important to the plaintiffs’ case—without it, summary judgment was a virtual certainty. Finally, plaintiffs had not acted in bad faith; they had not withheld an expert to gain any strategic advantage.

Thus, Zoloft provides useful precedent to those facing a disastrous Daubert ruling, even if in the end it was not enough to save the day for the Zoloft plaintiffs. See In re Zoloft, 2016 WL 1320799 (E.D. Pa. Apr. 5, 2016). Parties should appreciate, however, that the law is generally unfriendly to attempts to supplement an expert. Several Federal Rules of Civil Procedure serve to prevent such a strategy:

Rule 16(b)(4) requires “good cause” to modify an expert disclosure deadline after the deadline has expired. Courts grant a “good cause” modification when the scheduling order’s deadline “cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

Rule 26 denies “rebuttal” experts the ability to bring in new opinions. See Boles v. United States, No. 13-489, 2015 U.S. Dist. LEXIS 42332, at *5 (M.D.N.C. Apr. 1, 2015).

Per Rule 37(c)(1), a party that fails to timely disclose an expert “is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

Furthermore, the Supreme Court has held that litigants can lose their case entirely if they do not put forth admissible experts in their case in chief. Weisgram v. Marley Co., 528 U.S. 440, 455 (2000). And there is simply no requirement that a court “provide a plaintiff with an open-ended and never-ending opportunity to meet a Daubert challenge until [the] plaintiff ‘gets it right.’” In re TMI Litig., 199 F.3d 158, 159 (3d Cir. 2000).

Even the Zoloft court agreed that presenting an additional expert after an unfavorable Daubert ruling was generally not “an appropriate litigation strategy.” Thus, carefully consider whether your client has a compelling case to make that a supplemental expert should be added.

Be alert to your opponent “opening the door.” If your expert’s opinions are excluded, then you should note which issues, if raised by your opponent, could potentially “open the door” to your expert’s excluded opinions. “Opening the door” is a widely recognized evidentiary doctrine that “allows a party to present testimony, which otherwise would be inadmissible, to ‘explain or contradict the testimony offered by the opposing party on direct examination.’” United States v. Brumfield, 686 F.3d 960, 963–64 (8th Cir. 2012) (quoting United States v. Durham, 868 F.2d 1010, 1012 (8th Cir. 1989)). It can apply to evidence declared inadmissible through both Daubert and Rule 702 orders. See, e.g., Hill v. Novartis Pharm. Corp., 944 F. Supp. 2d 943, 948 (E.D. Cal. 2013); Harris v. Copeland, No. 11-2209, 2013 U.S. Dist. LEXIS 138102, at *11 (D.S.C. Sept. 26, 2013). Accordingly, remain attentive to your opponent affirmatively raising testimony that touches on an excluded opinion of your expert. If such testimony is made, you should be prepared to establish that its solicitation “opened the door” to your expert’s opinions.

Prepare for your appeal. No matter what other strategies you pursue, take all necessary steps to preserve your objection to the Daubert ruling for appeal. If you prevail on appeal, you may get a second trial with better available evidence. Federal Rule of Evidence 103 requires a party objecting to the exclusion of evidence to preserve this claim by “inform[ing] the court of [the evidence’s] substance by an offer of proof.” Your goal is to make the substance of your excluded expert’s testimony “apparent from the context” of trial to an appellate court. Fed. R. Evid. 103.

For example, you may present your expert’s report to the court as a trial exhibit. You may wish to make a formal offer of proof. These measures do little to further your client’s case at trial because the jury will not see the report, but they record the “substance” of your expert’s testimony for appellate court review.

Your Opponent’s Expert Is Excluded—How to Take Advantage?
The opposing party has just lost testimony from an important expert. This is a huge boost to your client’s case, but the work is not done. Indeed, you must enforce a Daubert ruling at trial, and you may strengthen your case by raising the issue elsewhere. This section reviews how an attorney can make the most out of an advantageous Daubert ruling.

Reinforce the Daubert order at every opportunity. Much as an attorney who has had an expert excluded must recalibrate his or her case, so must the attorney who successfully gets an opposing expert excluded. You can press your new advantage by reinforcing the Daubert order in several areas of motion practice and oral argument.

Start by determining which issues the expert now cannot testify about. Then consider how this may give you an advantage at each stage of litigation. Emphasize this exclusion in any dispositive motions. Try to apply the reasoning of the Daubert ruling in motions in limineexcluding or limiting other witnesses’ testimony on similar issues, and raise the order in any trial briefs or evidentiary hearings, as appropriate.

Reinforcing your order can not only strengthen other motions but also prevent your opponents from slipping their desired testimony into the trial record in some other, creative way. It also reminds the court of the scope of its ruling so that it can easily apply the exclusion at trial.

Enforce the Daubert order at trial. Trial is where a helpful Daubert order provides great benefit, but it is also where that order is put to the test. If you fail to object to testimony excluded by the judge, it could come into evidence and an appellate court may deem your objection waived. To avoid this, have your Daubert order in hand as the expert testifies. Prepare to ask for a sidebar to explain why the statement or question at hand violates the order.

Furthermore, you must be vigilant in not opening the door on an excluded issue. Avoid topics that will enable opposing counsel to explain or contradict your testimony with the excluded expert testimony.

The Court Denies Your Daubert Motion—Do You Abandon Your Arguments?
You brought a Daubert motion to exclude an expert that you believe to be unqualified, but the judge disagreed. The expert will certainly take the stand at trial, but you need not abandon your arguments immediately. An attorney can continue working to exclude testimony that he or she believes to be objectionable.

Preserve your objections. A party must make a timely objection to a court ruling that admits evidence on the record. Fed. R. Evid. 103(a)(1). Appellate courts often require a “definitive” pretrial ruling for the issue to be raised on appeal. See Sprynczynatyk v. Gen. Motors Corp., 771 F.2d 1112, 1118 (8th Cir. 1985). Daubert orders are often denied without prejudice. See, e.g., Honeywell Int’l Inc. v. ICM Controls Corp., 45 F. Supp. 3d 969, 976 (D. Minn. 2014). Accordingly, it is often necessary to raise your objections again at trial to ensure the record reflects this objection on appeal. Moreover, you must object to any new information raised by the expert that falls outside the scope of the expert’s report or any motions in limine.

Don’t give up on the issue just because of one denial. Appellate courts not only have the authority to overturn erroneous Daubert rulings but also can even grant judgment as a matter of law if the record shows that the opposing party cannot prove its claim without that expert’s testimony. See Weisgram, 528 U.S. at 456.

Consider revisiting Daubert arguments at trial. You may even convince the trial judge that an earlier “without prejudice” Daubert ruling was incorrect. A more detailed record may cause the court to change its earlier decision. Once again, you should ask the court’s leave to raise the issue again at trial. Prior to trial, consider new ways of framing your objection in light of the full record. Most critically, be sensitive to the right moment to raise the issue at trial.

The Daubert order can be a significant turning point in any case, but it is rarely an end in itself. Regardless of its outcome, the steps taken after the Daubert order is issued can have a lasting, if not dispositive, impact on the litigation. Lawyers should be sure to calibrate their post-Daubert strategy so as to maximize their advantages or mitigate their losses, whatever the case may be.

Keywords: mass torts litigation, expert testimony, Daubert, Federal Rules of Evidence, Federal Rules of Civil Procedure

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