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What is a Daubert or Kumho Tire motion?

What is a Daubert or Kumho Tire motion?

Daubert motions are now called both Daubert and Kumho Tire motions. They are used to exclude opinions of a hired gun expert in a civil case. They can be used by both Plaintiff and Defense.

The decision as to whether to allow expert testimony in a case is governed by Federal Rule of Evidence 702. Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 702 charges trial courts to act as gatekeepers, making a preliminary assessment of the expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).

Expert testimony is only admissible "if it is both relevant and reliable" Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002) "The proponent of the expert testimony must prove reliability by a preponderance of the evidence." Dart v. Kitchens Bros. Mfg. Co., 253 F. App'x 395, 398 (5th Cir. 2007) (citing Moore v. Ashland Chem.Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc))

In determining whether testimony is admissible, some of the factors to look at include ‘whether the expert's theory or technique: (1) can be or has been tested; (2) has been subjected to peer review and publication; (3) has a known or potential rate of error or standards controlling its operation; and (4) is generally accepted in the relevant scientific community.’ Pipitone, 288 F.3d at 244. These specific factors, however, are merely illustrative and ‘may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony’ Kumho Tire Co., 526 U.S. at 138. Therefore, for certain types of claims, ‘the expert's testimony [can be] based mainly on his personal observations, professional experience, education and training.’ Pipitone, 288 F.3d at 247.

The key is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 526 U.S. at 152. "No one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience." Id. at 156. When experts "reach different conclusions based on competing versions of the facts," a trial court is not authorized "to exclude an expert's testimony on the ground that the court believes one version of the facts and not the other." Fed. R. Evid. 702 advisory committee's note. Instead, "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 79, 596, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

Full gatekeeper proceedings are not required where the reliability of an expert’s methods can be properly taken for granted and the expert’s reliability has not been “called sufficiently into question.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-52 (1999). See “Proceedings determined by court.” §5.1 p. 382.

The responding party has the burden of establishing the admissibility of the expert’s testimony under FRE 702 by a preponderance of the evidence. Barrett v. Rhodia, 606 F.3d 975, 980 (8th Cir. 2010; U.S. v. Nachio, 555 F.3d 1234, 1244 (10th Cir. 2009).The responding party does not, however, have the burden of proving that the expert’s opinions are correct. Tanner v. Westbrook, 174 F.3d 542, 547 (5th Cir. 1999); In re Paoli R.R. Yard PCB Litig., 35 F.3d 744; see also, Oddi v. Ford Motor Co., 234F.3d 136, 155-56 (3rd Cir. 2000) (evidentiary requirement for reliability is lower than standard for proving case). In other words, the responding party does not have to show that it will win its case on the merits; it must show only that the requirements of the Federal Rules of Evidence have been met. In re Paoli R.R. Yard PCB Litig., 35 F.3d at 744.

The court’s duty as gatekeeper is simply to ensure that the expert’s opinion is not so unreliable that it cannot be helpful to the jury. Daubert, 509 U.S. at 592-93. The court is to examine whether the expert’s methodology is sufficiently sound to be helpful to the jury, not to decide whether the expert’s conclusions are correct. Id. at 595; In re Paoli R.R. Yard PCB Litigation, 35 F.3d at 743-44.The jury will decide whether or not the expert’s conclusions are correct, based both upon vigorous cross-examination and upon consideration of the opposing expert’s testimony.

The critical point of the reliability inquiry is to make certain that an expert has the intellectual rigor of a similar expert in their relevant field of expertise. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In some cases, the reliability of the expert’s opinion is established by the expert’s qualifications. Kumho Tire, 526 U.S. at 150. A witness may be qualified to testify as an expert based upon skill, experience, knowledge, training or education. Fed.R.Evid. 702; see also Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3rd Cir. 2000) (expert's qualifications are interpreted liberally) (citing In re: Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir.1994), cert. denied, 513 U.S. 1190 (1995). Rule 702 “does not rank academic training over demonstrated practical experience.” Fox v. Dannenberg, 906 F.2d 1253, 1256 (8TH Cir. 1990).

To be reliable, an expert's opinions must be based on sufficient factual information, must utilize reliable methodology, and must reliably apply the expert's methods to the facts. See Rule 702. Rule 702 was intended to liberalize the standard for admitting expert testimony, leaving it to the jury to weigh the testimony based on cross-examination to weigh the testimony based on cross-examination. Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 587-88, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). “In determining the admissibility of expert testimony, the district court should approach its task with proper deference to the jury’s role as the arbiter of disputes between conflicting opinions.” United States v. 14.38 Acres of Land More or Less Situated in Leflore County, Mississippi, 80 F.3d 1074, 1077 (5th Cir. 1996).

Most criticisms of an expert’s opinion go to its weight, not its admissibility, Jahn v.Equine Servs., Inc., 233 F.3d 382, 393 (6th Cir. 2000); 14.38 Acres, 80 F.3d at 1077. Exclusion of expert testimony should be the exception, rather than the rule: Doubts regarding whether an expert’s testimony will be useful generally should be resolved in favor of admissibility. Miles v. General Motors Corp., 262 F.3d 720, 724 (8thCir. 2001).

This Court has broad discretion to admit expert testimony.A trial court's decision will not be overturned “unless it is manifestly erroneous or an abuse of discretion.” Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 647 (10th Cir. 1991).

Brad Pistotnik Law ® and The Bull Attorneys ® are trained and skilled personal injury trial lawyers that work in Kansas, Nebraska, Missouri, Texas, Illinois, Florida and other states. If you have an attorney doesn’t understand the law concerning the exclusion of expert testimony it is quite likely that you have the wrong attorney. Our consultations are always free. We only charge money when we win or you recover money. We have offices in Wichita Kansas and Garden City, Kansas. You can reach is at 620-THE-BULLor at 800-241-BRAD or at 316-684-4400. You can call Brad Pistotnik on his cell phone at 316-706-5020. You can call Tony Atterbury on his cell at 316-617-9237. We handle any accident involving car accidents, motorcycle accidents, motor scooter accidents, tractor-trailer accidents, big rig accidents, farming equipment accidents, fleet vehicle accidents, commercial motor vehicle accidents, and our attorneys are highly trained in the art of litigation.

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