Marina Siqueira
Jun 18, 2024

Daubert Motion Unveiled: Origins and Tactical Approaches


The Daubert Standard, also known as the "Daubert Test," is a crucial method used by courts to determine the admissibility of expert testimony at trial. In patent cases, this standard is particularly important as it enables the court to evaluate the reliability and relevance of an expert witness's testimony before it reaches the jury. The outcome of a Daubert motion can significantly influence the case, making or breaking the litigation.

Who are the Dauberts?

In the 1980s, Bill and Joyce Daubert sued Merrell Dow Pharmaceuticals, claiming that the anti-nausea medication Bendectin caused their son Jason's birth defects. Their attorney, Barry Nace, presented animal studies showing Bendectin could cause limb malformations, while Merrell Dow countered with human epidemiological studies showing no significant increase in birth defects. This case emerged during the "Junk Science" era when courts were increasingly concerned about the reliability of scientific evidence in lawsuits. Notable cases involving dubious scientific claims had led to large settlements, prompting a movement to exclude unreliable or unverified expert testimony from influencing jury decisions.

Initially, the Dauberts' evidence was dismissed under the Frye rule, which required scientific evidence to be generally accepted in its field. After the 9th Circuit upheld this decision, the Dauberts took their case to the Supreme Court. In 1993, the Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals, Inc., establishing the Daubert Standard. This new standard allowed judges to consider various factors to determine the reliability of evidence, such as testability, peer review, error rates, and general acceptance. Although the Dauberts did not win their personal case, their fight led to a significant transformation in the legal system. The Daubert Standard has since become a critical component of the litigation process, ensuring more reliable and relevant expert testimony in courts and enabling the acceptance of new scientific methods like DNA analysis. 

Tactics to beat Daubert challenges

To prepare for a Daubert challenge in patent litigation, lawyers can follow these strategies:
Research and tailor arguments to the Judge
Investigate the judge's past rulings on Daubert challenges to understand their preferences and biases. Use this knowledge to tailor your arguments and evidence to address the judge's specific concerns.
Align with Daubert factors
Familiarize yourself with the Daubert factors, such as empirical testing, peer review, and general acceptance. Ensure your expert's methods and conclusions align with these factors to strengthen your case.
Anticipate and address challenges
Present written materials, testimony, and exhibits clearly and concisely to help the judge quickly grasp the expert's testimony and its relevance. Anticipate potential challenges and prepare counterarguments, ensuring your expert is ready to address any criticisms or doubts from opposing counsel. 

Daubert motion to exclude opposing expert testimony

When weaknesses in the opposing party's expert testimony are identified, lawyers can follow these approaches to effectively leverage the Daubert motion:
Thoroughly analyze the opposing expert’s methodology
Scrutinize the opposing expert's methods for any flaws or inconsistencies that could undermine their credibility. Focus on identifying gaps in empirical testing, lack of peer review, or deviation from accepted practices.
Prepare a detailed and persuasive motion
Craft a clear, concise, and compelling motion that outlines specific reasons why the opposing expert’s testimony fails to meet Daubert standards. Support your arguments with robust legal precedents, scientific literature, and expert affidavits.
Anticipate and address potential counterarguments
Anticipate possible defenses the opposing party might raise and prepare counterarguments to reinforce your motion. Ensure that your own expert is ready to highlight the deficiencies in the opposing expert's work and explain why it is unreliable.

Understanding and effectively using Daubert motions is essential for patent litigation lawyers aiming to ensure only reliable and relevant expert testimony is admitted at trial. The Daubert Standard, originating from a landmark Supreme Court case, revolutionized the evaluation of scientific evidence in courts. By analyzing opposing experts' methodologies, crafting detailed and persuasive motions, and anticipating counterarguments, lawyers can successfully challenge inadmissible testimonies and fortify their own cases.

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