Peter Nordberg notes that on appeal, experts in criminal cases are much more likely to survive Daubert challenges than experts in civil cases. (Aug. 30). Why the discrepancy?

One reason that immediately comes to mind: criminal appeals are subsidized by the state, while civil appeals are not. One doesn’t need to be a Ph.D. economist to know that there will be a greater demand for a service when it is free than when it is not. A corporation in a civil case will be more likely to shy away from the expense of making a futile Daubert challenge on appeal than a criminal defendant who is not bearing the expense of that challenge.

Still, the number Nordberg derives for the percentage chance an opinion will be excluded after a reported civil appeal is statistically indistinguishable from 50%. Does this mean that bringing a Daubert challenge is akin to flipping coins? Nordberg acknowledges an immediate problem: expert testimony that clearly meets the standard won’t be challenged on appeal. I wonder how many reported cases would be found in a search for “expert” and variants of “testified” where Daubert and Kumho Tire never arise? Of course, this sometimes cuts the other way: see page 9, footnote 3 of recent Fourth Circuit decision Berlyn, Inc. v. The Gazette Newspapers, Inc., where a witness was excluded for failing to meet expert qualifications, but the decision does not mention Daubert or show up on Nordberg’s Daubert web site.

Nordberg suggests that “it seems likely that if any serious evidentiary challenge is mounted in district court, it will be raised on appeal too.” I would disagree. One source of bias: an admitted expert report is much more likely to result in a settled case with no appeal. Another: a granted Daubert motion is much more likely to be a dispositive factor. In other words, if I lose a case after expert testimony comes in, I may want to make that expert testimony an appellate issue, though I may instead prefer to raise other evidentiary rulings or procedural decisions or the jury instructions. I can’t (or, at least, shouldn’t) raise on appeal every serious issue I raised in the district court, and must pick and choose. If, on the other hand, I lose a case on summary judgment because my expert report was excluded, I must make that Daubert motion an appellate issue if I am to have any chance of prevailing on appeal. (One test of these two hypotheses: how many of the Daubert opinions issued in the first six months of 2000 in civil cases at the district court level resulted in an appeal of the Daubert ruling? In any appeal?) I think the proximity of Nordberg’s statistic to 50% is a coincidence.

One cannot meaningfully speak of expert batting averages; any Daubert motion is going to depend on the circumstances of the particular expert report. Nor can one talk of coin flips. The witness in Berlyn may very well have been excluded in the pre-Daubert regime.

Filed under: Daubert, expert witnesses, procedure