What do Daubert motions really do? Who do they really do it for may be the better question: plaintiffs or defense? Kentucky trial lawyer, John L. Tate, in his insightful article in the October Law Journal Newsletter, examined results from two very comprehensive Daubert surveys in an effort to answer the question “Do Daubert Motions Really Work?”

While the findings of these studies and the answer to Tate’s question are intriguing, we felt the facts revealed an interesting correlation between Daubert practice and delay in resolution of a case. We want to know if you see the same in your practice.

The vast quantity of data assimilated in these two surveys is astounding. A big thanks and nod to the Searle Civil Justice Institution of the Law & Economics Center at George Mason School of Law for their “Timing and Disposition of Daubert Motions in Federal District Courts” and PriceWaterhouseCoopers’ “Daubert Challenges to Financial Experts.”

Statistics

When you have an otherwise unproductive or unbillable fifteen minutes, you will probably enjoy skimming through some of the very informative charts and graphs. For instance, you can see the types of cases where experts are more often excluded, whether accountants are excluded more often than appraisers, or how often a Daubert motion leads to resolution of a case. Here are just a few fun facts you will find:

71% of Daubert motions are filed by defendants

Defendants are more likely than plaintiffs to have at least a portion of their Daubert motions granted

Courts take an average of 84 days to rule on Daubert motions.

Daubert motions filed before summary judgment rulings pend longer than those filed at other times, likely because courts wait to rule on both Daubert and summary judgment motions at the same time

For plaintiffs, unsuccessful Daubert motions are associated with a one-third lower win-rate in subsequent litigation than successful motions, yet there is no statistically-measurable association between the outcome of defendants’ Daubert motions and subsequent litigation outcomes

Are your eyebrows raising yet? Those are some pretty telling facts. Stats don’t lie and the numbers show Daubert motions are filed and fought harder by the defense and that they slow the case down. While the Searle study showed Daubert motions are successful 47% of the time in some sort of limitation of expert testimony, this does not translate to quicker resolution of the case. In fact, the opposite is true.

Analysis

What do Daubert motions really do? Delay things according to this study. They’re like a procedural smoke-bomb dropped on the case. Everyone has to wait for the dust to settle and your vision to return before you can see how to proceed. While Daubert motions are successful 47% of the time at limiting experts’ opinions, they are successful 100% of the time at consuming judicial resources and hindering early resolution.

The Searle study specifically concluded that “the longer a Daubert motion pends before a court, the lower the rate at which cases terminate early through settlement or summary judgment.” Who does that benefit? 

In the Searle study, of the 2,127 motions studied, 47% succeeded in limiting or excluding expert testimony. That means that almost half of the experts challenged are then identified as unreliable or unrelated by the court. That is a lot of shaky testimony.

While we know there are plenty of “hired gun” experts out there who deserve the Daubert axe, we can assure you reliable, well-versed experts are not in short supply - and we’re happy to prove it. It is unlikely the quality of expert testimony is generally so poor. Rather, we want to know if, in your practice, you find Daubert motions — while useful in striking unreliable expert testimony — are sometimes used for another purpose.