This is the fourth of a six-part series on liability defenses that every inside counsel should know (Part 1, Part 2 and Part 3). Based on more than 30 years of litigation practice, this series discusses the liability defenses I have found to most often result in successful summary judgments or dismissals, providing the best potential to end expensive and time-consuming litigation. This installment focuses on the breadth of the current law on exclusion of experts and how that law can be used to position cases for summary judgment or dismissal.
Most everyone knows the basic principles on exclusion of experts set forth by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc. Daubert held that Rule 702 of the Federal Rules of Evidence requires that expert testimony must rest on a reliable foundation and be relevant to the issues presented in the case at hand. Daubert further held that trial judges, when faced with a proffer of expert testimony, must determine at the outset pursuant to Rule 104(a) of the Federal Rules of Evidence whether the expert testimony is sufficiently reliable and relevant to be admissible into evidence. Trial judges were tasked as “gatekeepers” to make a preliminary determination of the admissibility of expert testimony.