Many people view the Daubert¹ challenge of an opposing party's expert as an up or down concept, meaning that they evaluate the challenge as winning if the court strikes the expert's testimony and prevents the expert from testifying to the jury, or losing if the court allows such testimony to proceed.  I submit that most experts, even highly qualified experts, will stretch their proffered testimony outside their expertise and beyond any scientific or reliable methodology in order to assist the party and lawyers paying them if not challenged. The challenge must force such experts to limit their testimony to their carefully defined and proven area of expertise and, more importantly, must restrict the scope of their opinions to that which they can prove through scientific, reliable and well accepted methodologies.  Cases are often lost because of the assumption that the designated expert has the requisite knowledge, education and experience to testify as an expert; but despite this reality very winable cases can be lost through the failure to fully utilize the power of the court to strike experts and/or portions of their opinions which leap from what is known and provable to what is desired. Conversely, cases which could theoretically be won or lost can be won through the aggressive use of Daubert motions challenging the scope and opinions of the opposing parties' experts.

   As an example, I was lead counsel for a utility contractor who was sued by the city/owner for alleged construction defects. The City had retained four separate engineers, all well qualified, but none of whom could scientifically and reliably connect many of their opinions offered for the benefit of their client, the City of Piney Point. This case was won more during the pre-trial battles over limiting the proffered testimony of these experts than during the jury phase of the case, because the jurors never reviewed many of the offered opinions which were struck or limited because they were unsupportable by any generally accepted methodology.  Moreover, the simple fact that their testimony was challenged, that they were vigorously questioned prior to trial, and that the Judge issued orders limiting the scope of their testimony, prevented them from making overbroad statements in support of their client and made them much more vulnerable to cross examination.  The case was styled as City of Piney Point, Texas vs. J.T.B. Services, Inc, 280th Judicial District Court, Harris County, Texas, tried to a jury before the Honorable Judge Tony Lindsay. presiding.  The Texas Reporter published an objective summary of the case as follows:

"City of Piney Point claimed that a large box culvert project performed by J.T.B. involved improper workmanship and defective materials, evidenced by large gaps in joints, bad cement - stabilized sand, which caused large sinkholes to develop in Carsey Lane (the road above the box culverts). [The City] sued for Breach of Contrac and negligent construction under the DTPA, including breach of varios waranties. 

 

J.T.B. Services denied such claims and artgued that the damages were caused by a faulty design and other contractors, including the road builder....

 

[The] City claimed $440,668.65 in actual damages, prejudgment interest, trebling under the DTPA, and Attorney fees of $113,000.00.

 

Plaintiff (City)'s Experts:

• Lynn J. Ratcliff, P.E. - Tolunay-Wong Engineers, Inc - Geotech Engineer
• Chris Claunch, P.E. - Claunch & Miller, Inc. - Civil Engineers
• Calvin Morgan, P.E. - Carter & Burgess, Inc. - Civil Engineers
• Hugh Brightwell - Carter & Burgess, Inc. - Construction Mgmt & Damage Expert

 

 Defendant (J.T.B. Services, Inc.)'s Experts:

• Jim Bulgier - President & Owner of J.T.B. Services, Inc.

 

 Result: Jury Verdict [take nothing] in favor of J.T.B. Services, Inc. "

 

   Consider the lineup: The City of Piney Point put up four astute experts from well known engineering companies who very much wanted to please the City of Piney Point, not only for the substantial fees that they were being paid to testify as experts but also because of the desire to pursue engineering business opportunities with the City of Piney Point.  While television courtroom dramas often depict what we sometimes refer to as "Perry Mason moments", the truth is that more cases, especially complicated business and construction cases, are won or lost during pretrial depositions, discovery and pretrial motions like Daubert Motions to Exclude or Limit the Use of Expert Opinions.  In the case of Piney Point, the significant limitations placed on the scope of the experts' testimony through the aggressive challenging of each expert's proffered testimony was critical to successfully defending this case.  The Daubert Motion and a Supplemental Motion to Exclude are attached to this article as examples of the sorts of challenges that can and should be made.

Fn1. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); such analysis and requirement that the Trial Court be the "gatekeeper" of expert testimony being adopted by the Texas Supreme Court in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).