Testimony Prepared Solely For Litigation: Assessing The Fifth Prong Of The Daubert Standard

A district court can analyze more rigorously the admissibility of an expert’s testimony if the expert’s opinion was prepared solely for litigation as opposed to testimony flowing naturally from an expert’s line of scientific research or technical work.

Brave New World

The year was 1995. The Ninth Circuit had to rule upon Daubert vs. Merrel Dow Chemicals after the Supreme Court gave its decision on the most important case on expert witness testimony and remanded the case back to the Court of Appeals. The Court of Appeals noted, “Federal judges ruling on the admissibility of expert scientific testimony face a far more complex and daunting task in a post-Daubert world than before.” – They called it a Brave New World!Testimony Prepared Solely For Litigation

In this “brave new world”, the most daunting task for Courts was going to be the assessment of reliability of an expert’s opinion. All experts assert that they utilized the type of data that is generally and reasonably relied upon by scientists in the relevant field (in 1995, we did not have the decision in Kumho tire which extended the applicability of Daubert to non-scientific experts). However, the Supreme Court in Daubert had clarified that the party presenting the expert must show that the expert’s findings are based on sound science, and this would require some objective, independent validation of the expert’s methodology.Discussing the criteria laid down by the Supreme Court, the 9th circuit layered the prepared-solely-for-litigation test onto the four factors

One very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. That an expert testifies for money does not necessarily cast doubt on the reliability of his testimony, as few experts appear in court merely as an eleemosynary gesture. But in determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist’s normal workplace is the lab or the field, not the courtroom or the lawyer’s office. . . .That an expert testifies based on research he has conducted independent of the litigation provides important, objective proof that the research comports with the dictates of good science. If the proffered expert testimony is not based on independent research, the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on “scientifically valid principles.”

The Times They Are a-Changin’

In the 14 years since the 9th circuit talked about the “prepared-solely-for-litigation” factor, the term has appeared more than 100 times in published Federal and State cases. [As per keyword search run on October 15, 2012 across a leading case law database] One important reason for the rarity of this prong’s application could be the fact that the use of experts has become more frequent than ever. Another reason could be the fact that experts are now more aware about the law and practice governing their testimony and ensure that such issues do not arise when they submit a report or testify. Let’s be clear that there is nothing wrong per se in an expert opinion prepared solely for litigation. [In re Paoli R.R. Yard Pcb Litig., 35 F.3d 717 (1993)] What it really does is cautions the judge into scrutinizing such opinions more closely and strictly – as the Sixth Circuit noted recently in Newell Rubbermaid, Inc. v. Raymond Corp.– it raises a red flag! Most recently, the issue was addressed by the Sixth Circuit in Lawrence v. Raymond Corp. in its opinion dated October 5, 2012. The Court affirmed…

This article was first published in the 4th Issue of the Expert Witness Chronicle. Click Here to download the magazine and read the rest of this article. Its absolutely FREE!

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