Issue Spotting in Daubert Motion Practice:
Two Reasons Every Litigator Who Opposes or Uses an Expert Witness Wants Specialized Daubert Counsel on Their Litigation Team
by Stephen Mahle

Issue Spotting

The critical role of issue-spotting in litigation is as established as any proposition in the law.  The ability of scientifically trained Daubert counsel to spot issues that non-scientifically trained lawyers are not trained to identify is the first and most important reason that litigators, regardless of specialization and regardless of level of advocacy skill, should have Daubert counsel in matters that involve the testimony of experts.  In fact, the greater the skill of lead counsel and the greater the complexity of the matter, the greater is the value of the Daubert counsel.[1]

In most complex litigation that employs expert testimony, some member of the litigation team drafts and files Daubert motions to exclude or limit opposing expert testimony, along with briefs in support of those motions.  These are followed by responses to those motions and replies to the responses.  The following section provides examples of how incorporating specially trained Daubert counsel into litigation teams for this set of tasks gives even the very best lawyers an edge in litigating expert-dependent cases for their clients.

A Daubert specialist can spot issues that more generally trained litigators are not trained to recognize

A few examples illustrate the point.

In one matter, call it Doe v. Jones, plaintiff proffered a damages expert, Dr. Mesa,[2] who used a regression analysis that he labeled “Cox Regression.”  The expert was a Dean and full Professor at a major research university and he claimed that he was using the model in accord with the generally accepted standards of his profession. Along with a damage estimate in the hundreds of millions of dollars, he even proffered the expert opinion that his analysis satisfied Daubert. Naturally, defendant wished to exclude this testimony.

The first problem with excluding this testimony was that, when used properly, Cox Regression apparently satisfies Daubert.  Testing, peer review, error rates and general acceptance in the relevant learned community all characterize properly executed Cox Regression. 

Mesa cited a range of peer reviewed publications in support of his testimony and he claimed that they indicated general acceptance of his method.  He had tests and error rates. In short, his testimony passed the “smell” test.  To complicate matters, a Lexis search for “Cox Regression” yields no hits and a Lexis search of “regression” yields no reference to Cox.

If Mesa’s testimony were admitted, it placed damages in the hundreds of millions of dollars, even long in advance of trial it would dramatically impact settlement ranges.

Daubert Lawyering in Doe v. Jones

Reviewing the literature on Cox regression (brush up on your statistical distribution theory first) in conjunction with Lexis research reveals that (1) Cox Regression is the equivalent of another regression model called the Proportional Hazards Model, and that (2) there was a case on the Proportional Hazards Model, Coates v. Johnson & Johnson, that allowed Daubert counsel to control Mesa’s testimony, and do it with a sense of humor.

In Coates v. Johnson & Johnson the 7th Circuit excluded plaintiff’s expert’s proffer of Proportional Hazards Model, (aka Cox Regression), based expert testimony and documented a list of errors in that expert’s methods.  Many of these errors paralleled the errors made by Mesa, and Mesa’s errors, while complicated, were fundamental violations of the method that he used.  If his errors could be established, the testimony should be excluded, keeping the hundreds of million dollar damages estimates from reaching the jury.  Perhaps more importantly, it removes that threat as a settlement tool.

The sense of humor part comes in because the prevailing expert in Coates, Dr. George Neumann (an actual expert’s expert who had co-developed the Proportional Hazards Model), was a senior econometrics professor at the university where Mesa earned his Ph.D.  If Mesa had made the errors in Neumann’s econometrics class that he made in his report, he would be unlikely to pass the course.  As a result, and what seemed to lock it up for the defense, was that the defense was able to argue that the expert’s testimony not only didn’t meet Daubert’s four part test, it appeared not even to pass Dr. Newman’s Econometrics 1 exam.  The case settled immediately after briefing these issues.

Only a lawyer who specializes in Daubert issues and has advanced statistical training makes this connection, and this is the core advantage of having a Daubert lawyer on your litigation team.  The traditional second-best solution to spotting Daubert and expert testimony issues is that, at least in theory, a lawyer working closely with an expert can put together the science/statistics notions with the legal rules to identify and litigate such issues, but many times this does not work (lead counsel in Doe is listed in Best Lawyers in America, and lead counsel’s experts were among the national elite and they didn’t put Cox regression together with the Proportional Hazards Model to bring Coates v. Johnson & Johnson into the mix).  Even if the litigator and expert working together do spot the critical expert testimony issues, that strategy involves billing the client for the time of two professionals where one person with both sets of skills can do the job better.  A scientifically trained Daubert lawyer has the ability to evaluate and critique the testimony from all sides and find the flaws that will allow the expert’s testimony to be excluded under Daubert without the heavy reliance on the lawyer’s own expert’s time required by the second-best solution. 

And Doe v. Jones is not an isolated incident.  In another recent case, Daubert counsel opposed a damages expert from the University of Florida who was valuing a failed IPO.  After evaluating his testimony, it was evident that, while qualified under Daubert, he was not considered an expert in valuing IPO’s by his academic colleagues.  One of the more senior professors[3] in the same University of Florida finance department, Dr. Jay Ritter, was (Ritter was one of the original economists credited with explaining how IPO’s are valued, which turns out to be pretty complex).  Reviewing Ritter’s scholarly papers showed that he had just published a paper in one of the most prestigious peer-reviewed finance journals explaining why many of the techniques the proffered “expert” relied upon were wrong, and that many of them were techniques often relied upon by professional witnesses to inflate valuation estimates. 

Daubert counsel showed that the proffered expert’s methods are indeed peer reviewed, but that they are peer reviewed as being wrong; that they would not even pass the straight-face test if presented in a seminar to the other faculty members in his own department, and that they surely did not meet Daubert’s exacting requirements for federal court expert testimony.  Virtually no other lawyer makes this connection, finds this Ritter article, and appreciates its usefulness in establishing the unreliability of the proffered expert’s testimony.  Because a Daubert lawyer with advanced statistical training was involved, the defense made the critical connections that allowed the defendant to control the expert testimony in this case. 

Daubert Issues Spotting is not Just for Excluding Experts

Daubert techniques are not just for excluding expert testimony; they can get expert testimony admitted as well.

In another case, both plaintiff’s lead counsel and his expert were convinced that plaintiff’s expert’s accounting testimony was going to be excluded on a pending Daubert motion.  Neither could refute the motion’s claims that the expert’s methods had not been tested, were not peer reviewed or generally accepted and had been prepared specifically for litigation.  Lead counsel was looking at losing his case by losing this dispositive motion.  Facing dismissal, he retained Daubert counsel.

Viewed through the eye of a Daubert legal specialist, this was a simple case. Daubert counsel defeated the motion to exclude the expert’s testimony by showing that the expert’s testimony was a simple application of basic accounting principles as taught in virtually all major universities in the United States, and that it accorded with GAAP (Generally Accepted Accounting Practices), words that play well with judges who are looking for Daubert factors.

Because it was a simple case, having the Daubert counsel involved was very inexpensive as well.

Daubert Issue Spotting in Other Types of Expert Testimony

Damages experts are the most common kinds of experts but Daubert techniques apply to all kinds of expert testimony.

In a products liability case, Daubert counsel opposed a pair of engineering experts whose testimony established an indispensable element of the products liability claim.  The analysis there was somewhat complex to recount here, but the case settled on advantageous terms immediately after the motions and briefs.  Lead counsel credited the settlement to the Daubert motion to exclude the experts.  Future articles here will discuss the use of Daubert counsel with other kinds of expert testimony, but the parallels are obvious.

A scientifically and statistically trained Daubert lawyer brings to the litigation team a set of specialized skills that provide innovative tools for lawyering Daubert matters and the extra-legal issues that often decide them.  Daubert issues are often case dispositive, so the party that commands the Daubert issues often commands the litigation.  Whether the goal is to admit or exclude expert testimony, use of a Daubert counsel gives a cost effective edge in litigating complex matters that involve the testimony of experts. 

  Stephen Mahle is a scientifically trained lawyer who concentrates his practice in litigating Daubert and expert testimony issues.  His clients range from solo practice lawyers to law firms, insurance companies and corporations that are among the largest in the United States. He can be reached at smahle@daubertexpert.com or at (561) 451-8400.

[1]   This is a first cousin of why so many patent lawyers are now JD/Ph.D.s: so many of the increasingly complex subjects that the law governs require extra-legal training to fully command.

[2]   Not their real names.

[3]   “More senior” means of higher academic rank, not older.  In this case, the “expert’s expert” whose article we relied upon was a young full professor and “Eminent Scholar.”  The “expert” proffered in the IPO matter was an older associate professor in the same university and department, whose lower rank is indicative of less academic stature and accomplishment.

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