Construction Expert Witnesses
Experts Face Fewer Challenges in Court, Survey Says
Robert Ambrogi
October 30, 2012
How often is expert testimony challenged in court? What types of experts are most likely to be challenged? How successful are those challenges? Do judges’ rulings on experts hold up on appeal?
The answers to these and other questions are presented in a fascinating study that surveyed thousands of challenges to expert witnesses over an 11-year period in state and federal courts. Conducted by PriceWaterhouseCoopers LLP, the study focused on cases involving financial experts, but also drew broader conclusions applicable to experts of all types.
Covering the years 2000-2011, the span of the study begins the year after the Supreme Court decided Kumho Tire Co. v. Carmichael, the 1999 decision in which the court extended its 1993 opinion in Daubert v. Merrell Dow Pharmaceuticals Inc. to all types of expert testimony. While the survey found a total of 6,919 challenges to experts, it considered only the 5,360 cases that expressly referenced Kumho Tire.
Not surprisingly, the survey found a steady annual increase in the number of challenges to experts, from 253 in 2000 to 879 in 2010. What was surprising, however, is that 2011 brought a drop in the number of challenges, down to 778 for the year. Of those, 335 were successful in excluding expert testimony in whole or in part.
Overall from 2000-2011, 45 percent of expert challenges were successful in excluding testimony in whole or in part. Half the challenges failed to exclude any testimony. In 4 percent of the cases, judges made no decision either way. The percentage of successful challenges remained relatively consistent throughout the period of the survey.
Large Drop in Challenging Financial Experts
With regard to financial experts, the study found an even greater drop in the number of challenges. Whereas challenges to financial experts rose steadily from 2001-2009, the number of challenges fell by 40 percent during 2010 and 2011. Even though the number of challenges fell, the rate of their success went up, with 54 percent of challenges in 2011 succeeding in whole or in part.
Challenges to financial experts fared differently in different courts, the survey found. Within the federal court system, challenges to financial experts were most likely to be raised in the Second, Fifth and Sixth Circuits. Those three circuits accounted for 40 percent of all challenges to financial experts. The Second Circuit alone accounted for 15 percent.
While those circuits heard the greatest number of challenges, the circuits where challenges were most likely to succeed were the Eleventh and Tenth, with success rates of 63 percent and 62 percent, respectively. The circuits where challenges were least likely to succeed were the Third and First, with success rates of 34 percent and 38 percent, respectively.
Not all financial experts are equal in their susceptibility to challenge, the survey found. Economists and accountants are the most frequently challenged types of financial experts, each representing 24 percent of all challenges to financial experts. The largest percentage of successful challenges involved those that targeted appraisers, with 51 percent of those challenges succeeding in whole or part from 2000-2011. In addition to looking at how often challenges succeeded, it analyzed why they succeeded.
Leading Reasons for Excluding Experts
The leading reason judges excluded experts was reliability. This was true for every year covered by the survey. Of the 561 challenges that resulted in full or partial exclusion of financial expert testimony, lack of reliability was a cause in 380 instances, or 68 percent of the cases. In just 2011, lack of reliability was a cause in 76 percent of the cases.
“When a financial expert is excluded for lack of reliability, it’s most frequently caused by a lack of valid data,” the survey concluded. “Particularly, there is more often a problem with the quality of the data … available to the financial expert or how the data is reflected in the analytical framework of the financial expert rather than the misuse of an otherwise acceptable methodology.”
Two other leading reasons for the exclusion of financial expert testimony were lack of relevance (38 percent of cases) and lack of qualifications (19 percent of cases). Of course, courts sometime cite multiple reasons for excluding expert testimony. Of the cases examined for this survey, 28 percent of exclusions were based on multiple criteria.
Most Rulings Affirmed on Appeal
A judge’s decision to exclude expert testimony is not always the end of the story, of course. When a judge’s Daubert decision is reviewed on appeal, how is it likely to fare?
For 2011 only, the study looked at federal and state appellate court rulings on Daubert issues. It found 68 challenges to experts. Of those, the lower court had excluded the testimony of 37 experts, accepted the testimony of 29 experts, and not considered the Daubert criteria for two experts.
With respect to all but 10 of the experts, the appellate courts affirmed the lower courts. For those 10 experts, the appellate courts overturned the lower courts’ rulings. Six of the cases involved financial experts, of which two were overturned.
Of the 10 cases where the lower court ruling was overturned, the appellate courts allowed four experts to testify at trial, excluded the testimony of one expert, and remanded the case to the trial court to apply or reapply the Daubert standards for five experts.
SOURCE: www.ims-expertservices.com