Daubert Motions: Are They Getting To Be Too Much?

The Overuse and Abuse of Daubert Motions: A Weapon Against Expert Witnesses?

Expert witnesses are often critical to the world of litigation. They provide a depth of knowledge on technical topics in trials, enabling the court to understand issues such as engineering, vehicle accident reconstruction, forensics, accounting, medical, etc.

But, the Daubert motion, ideally intended to maintain the quality and legitimacy of expert testimony, has morphed into a weapon to quash unfavorable opinions. This procedural challenge began in the 1993 Supreme Court case Daubert v. Merrell Dow Pharmaceuticals. It was supposed to eliminate “junk science,” but has become an overused and abused strategy that  can damage the implementation of justice instead of supporting it.

What a Daubert Motion is and Does:

When an attorney files a Daubert motion they are asking the court to restrict or even deny the admission of an expert’s testimony in a given case.

Courts require expert opinions to be based on commonly accepted and repeatable scientific principles and methods that are germaine to the case and are properly used by the expert.

Have the theories or principals been tested and peer-reviewed? Are there known and calcuable error rates?  Does the methodology receive general acceptance in the field? The pupose of the Daubert should be so that judges can prevent unreliable opinions from unduly derailing outcomes.

The spirit of the motion was moral, ethical, and logical- to guard from bias, advocacy (instead of facts), and bad science. But over time,  Daubert challenges have become a tactic that’s often drawn up, not to promote truth and knowledge- but to cause damage, delay, and side-tracking to “the other side”. Why not? It’s allowed, and attorneys are sworn and obligated to do whatever is ethical to promote their clients, right?

When a Good “Sometimes” Tool Becomes a Mainstay

In the past 20+ years, Daubert motions have gotten so common, it’s almost uncommon not to see them filed. In many cases- not just high stakes, or highly volatile ones- attorneys file these motions against many or all experts brought on by the other side. If the motion is denied, no big loss. But either way, more time, money, and effort is required for the expert to defend their methodology via rebuttals, affidavits, additional hearings, etc.

This also bogs down courts.

Sometimes, a whole legal shebang is needed so that an engineer can explain and prove to the court that the math in which he was trained in college, for which he has earned a masters degree and a Professional Engineering (PE) License, that’s been tested and proven relentlessly by thousands of practitioners,  and that he’s used almost daily for 30+ years is legitimate.

Data illustrates this Daubert shift from gatekeeper to God Gun. Some studies report that these motions are granted as little as 30% of the time. But, they may be filed in over 90% of cases with expert witnesses. This disparity is consistent with overuse: motions are  levied with little risk, but potential for high reward. If it works, the opposition’s case takes a huge blow; if not, no harm- you’ve still shaken things up, stalled, and increased costs.

Abuse in Action: Intimidation and Exclusion

Experts become almost harassed by the motions at times. In toxic tort cases, for instance, corporations facing lawsuits over environmental hazards may challenge epidemiologists not on science, but on side issues like funding sources or previous testimony. This discourages knowledgeable experts  from getting involved, creating negative effects.

Why testify if it could lead to blacklisting?

During litigation during the opioid crisis, big pharma aggressively went after addiction experts, stating opinions on causation weren’t well tested. Some challenges may be valid, but lots appeared to be concocted to drown plaintiffs in oceans of procedures.

This overuse and abuse can obfuscate truth, and overwhelm the little guy. Financially well-off firms can pay huge fees to attorneys to put together these motions, while small firms struggle. The result? An uneven playing field where justice isn’t equally served. One judge, in the reading of his opinion, stated Daubert has morphed from a scalpel into a club.

Consequences and Calls for Reform

The overall effects of overuse and abuse of the Daubert motion are obvious. The fallout is clear: delayed trials, high costs, and a shortage of willing experts. Courts get clogged, and legal positions get dismissed on technicalities instead of truth.

What’s the fix? Some advocate for stricter judicial scrutiny of Daubert filings—perhaps requiring a showing of good faith or imposing sanctions for frivolous motions. Others suggest streamlining the process with pre-trial expert vetting panels.

In the end, Daubert motions are essential for maintaining evidentiary integrity. But when overused or abused, they pervert that purpose, turning experts into targets rather than truth-tellers.

What do you think—have Daubert challenges gone too far? Share your thoughts in the comments!