Using Daubert, Kumho Tire and Kelly To Your Advantage


I. In Product Cases, Experts Are Being Challenged Like Never Before.

Product liability cases not only live and die by expert testimony, they often require that the trial attorney introduce cutting edge scientific and engineering testimony to prove liability, damages or both. This is especially true in matters such as defective drug cases, where the evidence that a product is unsafe may lie in the hands of a limited group of specialized researchers.

Yet, where new or emerging scientific evidence is employed in courtrooms, judges are charged by statute and decisional law as the gatekeepers who will determine what expert testimony ultimately reaches the trier of fact. Obviously, being in a position to convince the gatekeeper to open the gate is critical in meeting the plaintiff's burden at trial.

Most practitioners are familiar with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), in which the U.S. Supreme Court announced tightened standards for District Court judges performing their gatekeeper roles. Most are also aware that early last year, the high court added some flexibility to its Daubert test in Kumho Tire Co., Ltd. v. Patrick Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999), while at the same time affirming that Daubert principles apply to engineering experts as well as scientists. Many also know that in February of this year, the Supreme Court held a federal appeals court may make its own determination that a key expert does not meet the Daubert/Kumho Tire reliability standard and then instruct the trial court to enter judgment against that party without any further proceedings. Weisgram v. Marley Co., ___ U.S. ___, 120 S.Ct. 1011 (2000).

Even so, evaluating applicable gatekeeping rules doesn't end with acknowledging Daubert/Kumho Tire since, in California, the rules vary depending upon whether you are litigating in state or federal court.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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