Judges continue to aggressively grant Daubert challenges

PWC updated its annual study of Daubert challenges. The current study covers through the end of 2012, for a total of twelve years.

The results are nearly the same as what is reported in last year’s study, which is summarized here. The most important change from the prior study involve challenges to financial witness, which fell 40% since the peak in 2009.

By far, the most cited reason for exclusion is “reliability”. But reliability appears to be sometimes be code for the judge not agreeing with the conclusion. In most cases, the experts used an accepted methodology(ies), and were highly qualified and experienced. Instead, the Courts generally found fault with the inputs into the experts’ models. These factual inputs are most commonly provided to the expert by the client based on the client’s view of the facts, and would appear best critiqued through cross-examination.

Overall, Daubert challenges are an important part of federal trials, but the experts in recent cases appear to have paid attention to the results of past challenges and are becoming more careful and thoughtful. The extreme examples of experts using crazy methodologies are decreasing.

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