Trial Magazine

Defendants typically have to meet a high burden to prevail on summary judgment.¹ However, in products liability cases the summary judgment standard is effectively lowered for defendants—these cases almost always require that plaintiffs present expert testimony to support their claims.²

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the U.S. Supreme Court outlined the standard for the admissibility of expert testimony in federal courts.³ Federal Rule of Evidence 702 codifies the Daubert standard, providing that an expert must be qualified by “knowledge, skill, experience, training, or education” to offer opinions.⁴ Once qualified, an expert’s testimony is admissible only if it is relevant⁵ and reliable.⁶ The party offering an expert’s testimony must prove that the expert’s testimony is admissible by a preponderance of the evidence.

In virtually every products liability case, the defense uses what I call “the Daubert cocktail”—it files a Daubert motion to exclude expert testimony necessary to prove the plaintiff’s case. The defense often simultaneously files a summary judgment motion arguing that the plaintiff doesn’t have evidence to establish at least one element of the claim. If the trial court grants the Daubert motion, then it must necessarily grant the summary judgment motion. This “cocktail” is an elixir that the defense wants the court to drink so the Daubert standard now becomes the summary judgment standard. And it makes it much easier for courts to grant summary judgment in products cases.

For example, my firm handled a design defect case in which our expert opined that the defendant manufacturer needed to include a door on a forklift. The defendant, however, also sold a door for the specific forklift as optional equipment. The defendant moved to exclude our expert for failing to offer a safer feasible alternative design. The trial court accepted this argument and granted summary judgment, despite the fact that the defendant offered the alternative design we proposed as optional equipment.

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If the trial court grants the Daubert motion, then it must necessarily grant the summary judgment motion. This ‘cocktail’ is an elixir that the defense wants the court to drink.

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The Tenth Circuit, after noting the high level of leeway given to trial courts’ Daubert rulings, affirmed.⁷ The Daubert cocktail allowed the defendant to obtain summary judgment because it was able to convince a judge that we did not offer a safer alternative design—even though the defendant itself sold our alternative design as optional equipment.

As plaintiff attorneys, we must address the defense’s use of this Daubert cocktail more proactively.⁸ You can safeguard your cases against the Daubert cocktail by controlling the who, what, when, and how of your experts’ testimony. You determine who your experts will be. You choose what your experts will testify about. You decide when you will identify your experts. You decide when Daubert motions will be filed related to their opinions because you decide when to file affirmative Daubert motions. And you determine how the court will learn about your experts’ testimony. To protect your cases from the Daubert cocktail, here are some practical steps to take.

Expert Selection

Before you file a case, select a qualified expert whose testimony is relevant and reliable. If you don’t know which expert you will use at the filing stage, you’re setting yourself up for the Daubert cocktail.

Become an expert. The first step to selecting the appropriate expert is to become an expert yourself. Thoroughly familiarize yourself with the client’s mechanism of injury. Learn about the specific product at issue, its labels and warnings, anything the manufacturer has said about the product (such as in an owner’s manual), and the specifics of how your client’s injuries occurred. Also look for other litigation involving the product. And become well-versed in any applicable industry standards, publications, and government regulations.

The proof chart. The next step is to review the standard jury instructions for the venue, and begin preparing jury instructions. Use your draft preliminary jury instructions to prepare a proof chart or rubric. The proof chart should outline the claims, the elements for each claim, and what evidence you have (or need to get) to prove each element. Use the proof chart to determine what kind of experts you need and what testimony you need from each expert to establish the claims in the case. Your proof chart should thoroughly outline what you need to show that the experts’ testimony is relevant and reliable—in other words, what you need to survive summary judgment.

Plaintiffs often offer more than one defect theory—and for each defect theory, you must establish the causal link between that specific defect theory and the injury. Then if the defense is successful in excluding some of the defect theories, you still can proceed under the remaining defects.

What to look for in an expert. You must address many practical considerations before deciding whether to use a particular expert. Does the expert do the work to prepare the report and conduct any necessary testing and inspections, or do the assistants mainly do this? Directly ask how the expert will prepare his or her report and conduct inspections. It is a red flag if assistants primarily do the work because it likely means one of two things: The expert does not have time to devote to the case or takes on too many cases. Either way, that person is not a suitable expert.

Also consider whether the expert will make a good witness.⁹ We are often fooled by credentials. The best experts are not always the ones who went to the best schools—they are the people who can clearly convey their knowledge and expertise. If your expert can do that, then he or she should be able to persuade a judge and a jury.

Finally, consider whether you have a good rapport with the expert. If you don’t get along with the expert, it is going to be impossible to successfully fight the Daubert cocktail. The level of work you need from an expert in a products case is substantial. If you cannot establish a rapport with an expert, it will be difficult to get the level and quality of work you need.

The Expert Report

Every case in federal court requires expert reports from retained experts who testify.¹⁰ Under Federal Rule of Civil Procedure 26, the expert report must contain

• all opinions and the basis for those opinions
• facts and data considered in forming the opinions
• any exhibits that will support or summarize opinions
• the expert’s qualifications
• the expert’s testimonial history
• the expert’s compensation for the case.¹¹

When it comes to the expert report, less is not more—it must be thorough. Your experts must be succinct with a jury but as detailed as possible in their reports. Particularly for product defect experts, reports over 100 pages (excluding attachments) are often required.

In addition to the specific Rule 26 requirements listed above, the expert report should include a detailed discussion of

• the client, the events leading to the client’s injuries, and the injuries
• all materials the expert reviewed and any product inspections done, if applicable
• the product—including its history, its design, the manufacturing process, its injury history, applicable industry standards, and applicable government regulations
• the manufacturer’s defenses and why those defenses do not hold up under scrutiny
• the methodology used, why that methodology is appropriate for analyzing the product at issue, and how the expert used the methodology to form opinions
  likely criticisms of the expert’s opinions
• how the product’s defects caused the client’s injuries
• alternative designs or warnings, if applicable, and how each of these proposed alternatives would have prevented those injuries.

This preparation process for expert reports may feel like overkill, but it is not. Products cases deal with highly technical aspects of medicine and engineering outside a judge’s wheelhouse. The expert report needs to provide clarity to the judge.¹² And it should establish that the expert is qualified and that the expert’s opinions are relevant, reliable, and therefore admissible.¹³

This type of report takes a significant amount of time to prepare—so start presuit. The report does not need to be complete presuit, but ideally you should have it in draft form. The only things missing from this draft should be specific items that cannot be completed until after filing—typically deposition testimony from the plaintiff, medical providers, and fact witnesses. Once you obtain this additional information, complete the report as soon as possible.

State Cases

While many state courts do not require expert reports,¹⁴ it is something to consider preparing when you file a products case. Most state courts have adopted the Daubert standard or a modified version of that standard to assess the admissibility of expert testimony.¹⁵ So the defendant can use the Daubert cocktail in state court too. Be prepared to counter this with the same strategies you would use in federal court.

A thorough expert report in state court prevents gamesmanship from the defense. When the defendant deposes your experts, the goal is rarely to learn all of your expert’s opinions and the basis for those opinions. Instead, the defendant’s goal is to get quotes to insert into a Daubert motion to have your expert struck by the court. These quotes are often taken out of context and are not a valid, complete, or accurate representation of the expert’s qualifications, opinions, and methodology.

For example, in a case my office handled, the defendant filed a motion to exclude some of our expert’s opinions because in the deposition the expert said his design alternative “could have” (not “would have”) prevented the injury. However, I was able to point to the expert’s 138-page report outlining his causation opinions. Providing an expert report to the defendant before the deposition lets you point out dishonesty to the court.

Affirmative Daubert Motions

In a products case, you may typically wait for the defense to file Daubert motions on your experts. But by doing so, you voluntarily drink the Daubert cocktail. While you can protect your case through expert selection and the expert report, the best strategy is not to allow the defense to use this cocktail at all.

First, disclose your experts and provide your expert reports well before the expert disclosure deadline—once your expert disclosures and reports are ready, offer them to the defense. Right after you do that, file affirmative Daubert motions on your experts, seeking a ruling from the court that your experts meet the Daubert standard (or the applicable state court standard).

Ideally, file affirmative Daubert motions at least 60 days before the expert disclosure deadline. This will provide ample opportunity for the defendant to respond and for you to correct any defects in your experts’ opinions that the defendant identifies before the disclosure deadline.

Affirmative Daubert motions offer a strategic advantage because you get to frame your experts for the court—the first time the court hears about your experts’ qualifications and opinions is from you, not the defense. This allows you to take advantage of what psychologists call the primacy effect—the tendency for people to emphasize information that comes first over information that comes later.¹⁶

You may fear that early expert disclosures will invite early Daubert motions to exclude your experts. However, that is unlikely. The defense is going to file Daubert motions at the last minute. They don’t want you to learn about any potential problem with your expert until it’s too late for you to remedy the issue. My firm has disclosed experts and reports early for a while, and it has not resulted in early Daubert motions against our experts.

It is likely that the defense will have a visceral reaction to your affirmative Daubert motions and argue to the court that they are inappropriate. This has certainly been my experience. There is no basis for this reaction. Nothing in the rules prohibits affirmative Daubert motions.¹⁷ In fact, you bear the burden of proving, by a preponderance of the evidence, that your experts’ testimony is admissible.¹⁸ But the court usually won’t express such misgivings. At worst, it will just deny the motions as moot because it already ruled on the defense’s Daubert motions to exclude your experts’ testimony.¹⁹

Affirmative Daubert motions are routine in criminal cases.²⁰ And while still uncommon, they have been used successfully in civil cases.²¹ But plaintiff lawyers must make it a common practice—these motions provide the best opportunity to defeat the Daubert cocktail, defeat the defense’s efforts at summary judgment, and obtain substantive justice for our clients.

Other Considerations

Deposition prep. Even when you file affirmative Daubert motions, the defense likely will still file their own Daubert motions on your experts. These motions will be based almost exclusively on your experts’ depositions. So spend time preparing your experts for their depositions to ensure that they thoroughly know their reports and have reviewed any new information that has become available since preparing the reports. Their testimony must be consistent with their reports (and the testimony of your other experts).

Scheduling. We ask for the Daubert cocktail when we agree to scheduling orders with the Daubert motions and summary judgment motions due on the same day. Don’t agree to this—instead, separate these two deadlines so that defendants’ Daubert motions on your experts are due before the close of discovery and summary judgment motions. You typically are required to disclose your experts first²²—so there is no reason you should have the same Daubert motion deadline as the defense.

To defeat the Daubert cocktail, remember the big picture: To disclose experts and their reports early in the case, be proactive about obtaining written discovery and documents and taking depositions—including getting your clients deposed. This allows you to dictate the time line of your cases, which in turn allows you to survive Daubert challenges and summary judgment.

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Jasper Abbott is an attorney at Warshauer Law Group in Atlanta. He can be reached at jasper@warlawgroup.com.

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Notes

1. See Malen v. MTD Prods., Inc., 628 F.3d 296, 303 (7th Cir. 2010).
2. See, e.g., Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1155–58 (E.D. Wash. 2009).
3. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
4. Fed. R. Evid. 702.
5. Id. at (a) (“the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue”).
6. Id. at (b)–(d) (“the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case”).
7. See Petersen v. Raymond Corp., 994 F.3d 1224, 1225 (10th Cir. 2021).
8. A study on Daubert motions in federal court shows that in tort actions, district courts partially grant more than 50% and fully grant 30% of defendants’ Daubert motions. See James Cooper, Geo. Mason Univ. Sch. of Law, Timing and Disposition of Daubert Motions in Federal District Courts: An Empirical Examination 9 (2015).
9. AAJ list servers are an excellent resource to learn about unknown experts.
10. Fed. R. Civ. P. 26(a)(2)(B).
11. Id.
12. Richard A. Posner, Judicial Opinions and Appellate Advocacy in Federal Courts: One Judge’s Views, 51 Duq. L. Rev. 3, 36 (2013) (arguing that appellate judges need to be spoon-fed given their large dockets and lack of familiarity with each case and the same applies to district court judges).
13. Fed. R. Evid. 702.
14. Compare, e.g., Ga. Code Ann. §9-11-26(b)(4) (not requiring expert reports) with, e.g., Ohio Civ. R. 26(B)(7) (requiring expert reports).
15. J.L. Hill, The States of Daubert After Florida, LexVisio, May 6, 2020, https://www.lexvisio.com/article/2019/07/09/the-states-of-daubert-after-florida.
16. Jessica Sullivan, The Primacy Effect in Impression Formation: Some Replications and Extensions, 10 Soc. Psychol. & Personality Sci. 432 (2019).
17. See Wolk v. Kodak Imaging Network, Inc., 840 F. Supp. 2d 724, 738–40 (S.D.N.Y. 2012) (Although denied, the plaintiff’s pretrial motion to admit expert testimony was considered using Daubert analysis.).
18. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999) (citing Daubert, 509 U.S. at 592, n.10).
19. Anderson v. Raymond Corp., 2021 WL 3163888, at *9 (S.D. Ill. July 27, 2021). The defendant’s motion for summary judgment was subsequently denied in September.
20. See, e.g., U.S. v. Velarde-Pavia, 2019 WL 3536927, at *6 (D.N.M. Aug. 2, 2019) (granting the government’s motion to allow expert testimony from five experts on drug identification, DNA, firearm function, fingerprints, and drug valve).
21. See, e.g., Gonzales v. Neb. Pediatric Practice, Inc., 923 N.W. 2d 445, 468 (Neb. Ct. App. 2019); Ireland v. Dodson, 2007 WL 2461609, at *3 (D. Kan. Aug. 22, 2007).
22. See, e.g., Willever v. U.S., 775 F. Supp. 2d 771, 775 (D. Md. 2011) (District court required plaintiff in a Federal Tort Claims Act case to make expert disclosures one month before defendant.).