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November 26, 2018 Practice Points

The Battle of the Experts

By Emily Pincow and Alexis Kellert

The “battle of the experts” is a familiar refrain in mass tort litigation and usually refers to an exciting duel at trial. But while taking down an opponent’s expert on cross examination is essential, the fastest way to win the battle of the experts is to take out an expert before the battle even begins. In order to score an early win, defense attorneys practicing in state court should be intimately familiar with the applicable expert admissibility standards, which remain in flux in many jurisdictions.  

While the majority of states have adopted the federal Daubert standard, a handful of states continue to adhere to Frye. See Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579 (1993); Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Further, some jurisdictions have blended the two popular tests, while others have created their own tests. Because of this lack of uniformity, it is critical for litigators to remain knowledgeable of the evolving admissibility standards. Just this year, two states—New Jersey and Florida—clarified their standards, but in very different ways. 

In August, the New Jersey Supreme Court issued a defense-friendly opinion that swung the pendulum towards a more heightened standard for admissibility of expert opinions. See In re Accutane Litig., 234 NJ 340 (2018). Previously, New Jersey required a proponent to demonstrate general acceptance within the relevant scientific community. Under the new standard, New Jersey comes in line with the federal Daubert standard. Stopping short of declaring New Jersey a “Daubert jurisdiction,” the Supreme Court nevertheless recognized that New Jersey’s standard for admitting expert testimony shares several noteworthy principles with Daubert and its progeny. 

Defense attorneys should take advantage of New Jersey’s new defense-friendly gatekeeping rules, namely pointing out where an expert falls short of any Daubert hallmarks: (1) ensure that the expert’s reasoning and methods can actually be applied to the facts of your case; (2) address analytical gaps between the data and opinion of your opponent’s expert; and (3) point out if the expert is cherry-picking or selectively choosing lower forms of evidence in the face of a larger body of uniform evidence. See In re Accutane Litig., 2018 WL 3636867, at **25, 30–31. 

By contrast, the Florida Supreme Court clarified its standard for the admission of expert evidence, rejecting Daubert and adopting Frye’s “general acceptance” inquiry. See DeLisle v. Crane Co. et al.,No. SC16-2182 (Oct. 15, 2018).Although Florida courts continued to apply the Frye standard to the admission of expert testimony, the Florida legislature amended the state’s evidence rules to incorporate Daubert. In October 2018, the Florida Supreme Court held that the amendments codifying Daubert were unconstitutional and infringed on the court’s rulemaking authority.   

In sum, it is imperative that you understand the applicable standard governing the admissibility of expert evidence at the inception of any mass tort case. The ability to exclude or even limit your opponent’s expert testimony prior to trial can allow you to score an early win in the battle of the experts.

Emily Pincow and Alexis Kellert are associates at Weil, Gotshal & Manges LLP in New York, New York.

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