Saturday, November 25, 2006

Daubert and Efficiency

Over at Science Evidence (excellent blog, go take a look), Cliff Hutchinson takes umbrage at some remarks by U.S. Magistrate Judge Dennis L. Howell on the inefficiencies created by pretrial Daubert proceedings. The remarks in question were contained in a pretrial order in Benefield v. Clarkson, No. 2:06cv2 (W.D.N.C. Nov. 13, 2006), which denied, without prejudice, a medical malpractice plaintiff's motion to exclude testimony from a defense standard-of-care expert. The relevant passage from the order reads as follows:
Consideration of the qualifications of an expert at trial is also efficient. An attorney designating a person under Rule 26 as an expert is no guarantee that such person will be called by the defendant at trial. Further, if a judge undertakes to determine the expertise of a witness well in advance of trial there is no guarantee that such judge will also be the trial judge. If federal courts were to engage in the pretrial qualification of experts it would be a huge inefficiency, resulting in mini trials. At any given time, there are hundreds of cases pending in the Asheville/Bryson City divisions, and it would be impossible to provide the parties with the relief they seek without congesting the trial docket. Indeed, this action -- like 90 percent of all civil actions filed -- may not even make it to trial. The proper method for challenging an expert under Daubert is to file a Motion In Limine in close temporal proximity to the Final Pretrial Conference.
To clear up one tangential detail before we comment further, it's not completely clear that the motion at issue actually involved Daubert at all.1 But it did at least involve the admissibility of expert testimony, and so that quibble need not detain us.

We imagine that Magistrate Judge Howell's pretrial order was crafted primarily for the parties' consumption. We doubt it was intended to become a leading federal authority on procedures for motion practice involving expert evidence. Judicial officers do sometimes try to dispose of the matters before them without writing treatises. That said, Hutchinson is surely correct that the order's ultimate procedural prescription (to file Daubert motions only on the eve of trial) would be overbroad, and is not reflective of prevailing customs in federal practice.

What seems less clear is whether Magistrate Judge Howell doesn't have something of a point about efficiency. Hutchinson may be right that Daubert motions, when potentially dispositive, can save some parties considerable time and effort, if granted at a relatively early stage.2 Those are party efficiencies, of course, as much as they're judicial ones. We'll return to that point in a moment. We want to observe first that even from the parties' point of view, Daubert motions can secure efficiencies only to the extent that the motions are meritorious. Very often, they are not, and the net effect of a Daubert motion that gets denied is a decrement in efficiency for everyone involved.

Defense counsel, mind you, do not file losing motions because they are venal or unintelligent people. They file them because they are acting rationally in the best interests of their clients, given the current regime. Under that regime, there is almost no downside to raising even relatively weak Daubert objections. Defense counsel will be paid for their work, the motion may stick, and even if it doesn't, the motion may "educate the court" and/or intimidate the opposition. At the very least, a motion will usually force plaintiffs' counsel, who are typically paid on contingency, to devote substantial time and resources to responding. Defense counsel's main disincentive to file Daubert motions (apart from the client's possible unwillingness to pay for them) may be that a sufficiently weak one might damage counsel's credibility with the court. In practice, that does not seem to represent a compelling deterrent.

That brings us to the issue of judicial economy. Parties to litigation are often keen to see uncertainties resolved -- especially if there is any chance that their resolution will effect a dispositive result in the party's favor, and no chance that it will lead to a dispositive result against the party. The admissibility of expert evidence is nowadays high on the list of uncertainties that defendants, in particular, would often like to resolve. Daubert issues cannot be decided, however, without judicial intervention. This, together with the relative costlessness of filing Daubert motions, sets the stage for a classic tragedy-of-the-commons problem -- one that the defense bar may be slow to recognize in this context,3 but one whose prospect apparently seems all too real to Magistrate Judge Howell.

Although Magistrate Judge Howell's remedy might be too Draconian if adopted as guidance for all cases, the points he makes in support of it seem valid. Those of us who spend a lot of time thinking about Daubert tend to think largely about the big, complex cases where the Daubert issues are at their most numerous and difficult, and where they play their most high-profile role. In such complex cases, to be sure, orderly pretrial procedures for addressing evidentiary issues can be well-nigh indispensable. To leave them for the eve of trial would often be a nightmarishly foolhardy plan. But not every case falls in that category. Not everyone would see Benefield, for example, as such a case.

What is clear is that at any given moment, there are about 1500 cases pending in the Western District of North Carolina -- about a thousand civil actions, and 500 criminal cases. Divided among the district's five judgeships, that represents about 300 cases per judge. Each of those cases no doubt presents evidentiary issues that the parties consider important. Yes, pretrial proceedings are an important part of the engine that drives the ultimate disposition, through dismissal or settlement, of the vast majority of cases that never reach trial. But to decide all contested evidentiary issues at the drop of any party's motion in limine, regardless of the stage of proceedings, would not seem the highest and best use of the judicial resources available. It may usually be reasonable to wait and see which evidentiary issues survive to trial.

For good or ill, the Federal Rules of Civil Procedure already afford multiple vehicles for pretrial adjudication -- procedures that the parties may invoke, subject to the courts' scheduling authority, as a matter of right. Motions for summary judgment fall in that category. So too do motions under Fed. R. Civ. P. 12. The widespread notion has arisen, however, that parties are also entitled on demand to lavish pretrial Daubert proceedings, as part of their core Due Process endowment. That notion is incorrect. No rule requires that Daubert challenges be adjudicated on a party's pretrial motion, nor does any rule bar the district courts from reserving decision on Daubert objections until trial. There may often be sound practical arguments for waiting. When the courts do wait, everything may often go just fine. See United States v. Nichols, 169 F.3d 1255, 1262-64 (10th Cir. 1999).

Update 11/26/06: See the comments for Cliff Hutchinson's thoughtful response.

1 The plaintiff's motion did not mention Daubert or Fed. R. Evid. 702. Neither did the defendant's response. Neither party, in fact, appears to have a cited a single federal authority. The stated basis for the plaintiff's motion was that the defendant's expert lacked familiarity with the prevailing standards of practice in "the same or similar communities" -- the governing duty of care under N.C. Gen. Stat. ยง 90-21.12. Although this issue might be seen through the prism of relevance (which does fall within Daubert's ambit) or as one implicating the expert's qualifications (which Rule 702 does cover), it can also be regarded as one of competency. See Purvis v. Moses H. Cone Mem'l Hosp. Serv. Corp.,624 S.E.2d 380, 383-86 (N.C. Ct. App. 2006) (repeatedly using competency language in connection with admissibility of expert testimony under section 90-21.12). Under Fed. R. Evid. 601, competency would indeed be governed by state rules of decision, in a diversity case like Benefield.

2 The actual motion in Benefield, mind you, does not seem to have been a potential case-killer. It sought exclusion of a defense expert in a medical malpractice suit. Although such relief could affect the settlement posture of the litigation, it would not, by itself, eliminate the case from the docket, or the need for a trial. But Magistrate Judge Howell's remarks did sweep well beyond the circumstances of the particular case, and it's fair for Hutchinson to comment on that broader level.

3 The idea that "frivolous lawsuits" are responsible for clogging the dockets does not seem to encounter the same cognitive resistance -- except, of course, from plaintiffs' counsel.


Cliff Hutchinson writes ...

Thanks for this well done and complete discussion of the Benefield issues. Here are some follow-up thoughts. When we first addressed "bad science" cases in the early 1980s there was no effective vehicle to challenge the unreliable expert. In particular, I recall an expert with a PhD in agriculture opining, based on a Russian language rat study, that formaldehyde caused "toxic hepatitis." So Daubert has been a godsend for that sort of farfetched opinion. This post reminds, though, of the rule of unintended consequences.

The problem is the use of Daubert as a tactic: such as the filing of a form Daubert challenge to all of the opposing experts. As Judge Howell recognized, those types of unmeritorious challenges are grossly inefficient and, indeed, abusive. They can result in minitrials and satellite litigation.

The resolution lies with trial judges, who as part of their gatekeeping responsibility must recognize when the situation calls for the full formal process, perhaps with a hearing and live testimony, and when it can be addressed summarily.

The challenge is no more difficult than with other pretrial matters. For example, trial courts frequently must recognize when a discovery dispute is based on a real issue and when it is simply an abusive strategy. There is, unfortunately, no bright line way to identify the real from the tactical disputes, although the use of blanket, form Daubert motions is a good indicator. The system must rely on the experience and savy of the court.

In many cases, such as on a clear issue of general causation in a toxic tort case, the earlier the trial court can schedule a Daubert ruling, after giving the parties the necessary opportunity to line up their evidence, the better.

6:15 PM  

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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.