Attorneys’ Fee Request Not the Time to Challenge Expert

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You would expect a challenge to an expert witness to be made before trial, before the expert has the opportunity to testify. In an unusual case out of a federal court in Florida, however, the challenge came after the jury had rendered its verdict, in the plaintiff’s post-trial motion for an award of costs and attorneys’ fees. Unfortunately for the plaintiff, the challenge came too late – the judge ruled that it should have been raised in a pre-trial Daubert motion.

The ruling came in a wrongful death lawsuit against tobacco manufacturer R.J. Reynolds Tobacco Company. This was one of the so-called Engle progeny lawsuits that resulted from the decertification of the class action named for the original lead plaintiff, Howard Engle. In this case, the plaintiff was Alvin Walker, as personal representative of the estate of Albert Walker, a long-time smoker who claimed his addiction to tobacco caused the lung cancer that led to his death.

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