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Daubert Challenges: Disqualifying Economic Damages Expert Witnesses

Economic damage  expert witness researching.

The Daubert standard is the set of criteria used to determine the admissibility of expert witness testimony in federal court. It is based on a Supreme Court ruling in a 1993 decision Daubert v. Merrell Dow Pharmaceuticals, Inc. which places the judge into the role of gatekeeper deciding whether an expert’s testimony is admissible.

Under the Daubert standard, the trial judge serves as the gatekeeper who determines whether an expert’s evidence is deemed reputable and relevant.

As such, trial judges employ what is known as a Daubert test to assess whether an expert witness’ testimony is

  1. Based on scientifically valid methodology and
  2. Whether it has been properly applied to the facts at issue.

Failure to comply with the Daubert standard can result in the exclusion of an expert’s testimony.

Plaintiffs’ or defendants’ attorneys can file a motion in limine to exclude the other side’s expert testimony and thus only present the testimony of their expert to the trier-of-facts.

Strategies Lawyers Use to Disqualify Economic Damages Experts

Attorneys can file a motion in limine requesting that the judge exclude some or all of an opposing expert’s opinions and testimony.

This would typically be done prior to trial but after discovery. Thus, if the expert is excluded the excluded side can not replace that expert for trial and may be left with no expert witness to testify on economic damages.

Expert witnesses with weak or inappropriate credentials who have had their methodology excluded in the past are most vulnerable to a Daubert exclusion.

Daubert Challenges

Under the Daubert standard, the factors that may be considered in determining whether the methodology is valid are:

  1. Whether the theory or technique in question can be and has been tested;
  2. Whether it has been subjected to peer review and publication;
  3. Its known or potential error rate;
  4. The existence and maintenance of standards controlling its operation; and
  5. Whether it has attracted widespread acceptance within a relevant scientific community.

As mentioned above Expert Witnesses with weak or inappropriate credentials who have had their methodology excluded in the past are most vulnerable to exclusion. So it is critical to thoroughly vet your expert and all opposing experts.

How to Prevent Having an Economic Damages Expert Witness from Being Disqualified

To prevent having your economic damages expert excluded or disqualified, check that they have the appropriate background and experience to opine on the specific economic damages in your case.

For example, sometimes an accounting expert is used in matters that are more applicable for econometric expertise and an understanding of economic theory. It is best to retain an expert witness with expertise in both fields so that both of your bases are covered.

Also, make sure that they are using and properly citing accepted scientific methodology to determine the value of economic damages.

If an expert witness does not have the requisite expertise or has been excluded under Daubert in the past for unscientific methodology, there is a good chance that they will be excluded in your particular matter so do your research on both your and the opposing economic damages expert.

Some red flags for unscientific methodology are when an expert uses their own non-peer-reviewed study or methodology and then cites it as scientific evidence that the methodology is generally accepted. Similarly, research that is based on an expert’s own data that has not been vetted by independent parties can be another red flag.

Why Hire an Economist as an Expert Witness for Economic Damages?

Economists at DMA Economics have never been excluded under Daubert and Dr. Donald May, an expert on scientific methods, has played a key role in consulting with attorneys to exclude many opposing experts under Daubert due to their inappropriate methodology.

To learn more about how Dr. May and DMA Economics can help you with your case, contact us today.

Donald May Economic Damages Expert Witness

About the Author

Dr. Donald M. May PhD CPA

As a former MIT finance professor with extensive testifying experience, Dr. May is a world-class expert in the valuation of damages. With his invaluable experience in testifying in arbitration as well as state and federal court, Dr. May represents what sets us apart from others—our solid knowledge base and experience.