Daubert Challenges Up 250% – PwC Study
Weeding out Junk Science? Â Or Scaring Off Competent Experts?Â
AreÂ DaubertÂ challenges really weeding out â€śjunk scienceâ€ť and â€śpseudoscienceâ€ť in the courtroom, or could it be that they are actually scaring off good, competent experts? Given the numbers alone, one canâ€™t help but wonder. Â Bullseye, a Legal Blog on Expert Topics, reports on a new study that examines the question.
Since the U.S. Supreme Courtâ€™s 1999 decision inÂ Kumho Tire Co. v. Carmichael, which established that the criteria set forth inÂ DaubertÂ applied to other types of expert testimony â€“ not just that of a scientific nature â€“ the number ofÂ DaubertÂ challenges has risen sharply. While some increase may not be too surprising â€“ after all, theÂ KumhoÂ decision expanded the pool of experts subject toÂ DaubertÂ criteria â€“ what has perhaps left experts and attorneys scratching their heads is the sheer increase in the number of challenges.
According to aÂ PricewaterhouseCooper study, which looked atÂ DaubertÂ challenges postÂ Kumho, the number ofDaubertÂ challenges to all expert witness types increased dramatically in the first decade of 2000. The study looked at federal courts and state courts utilizingÂ DaubertÂ and revealed thatÂ DaubertÂ challenges to all types of experts have exploded â€“ in the year 2000 the study noted 253Â DaubertÂ challenges, and that figure jumps to 879 in the year 2010 â€“ amounting to an almost 250% increase. In fact, 2010 marked the year with the mostDaubertÂ challenges ever.
As if those figures arenâ€™t daunting enough, 2010 showed a 49% success rate ofÂ DaubertÂ challenges to expert witnesses of all types, either in whole or part. The good news, if there is any, is that the percentage of successful challenges remained fairly stable over the first decade of 2000.
The increase inÂ DaubertÂ challenges has occurred despite the fact that the number of filings, at least in federal court, has remained consistent over the same time period. For example, using information obtained from a website maintained by theÂ Administrative Office of the U.S. CourtsÂ which tracked a 12 month period ending March 31, the year 2001 saw 254,523 total civil cases filed in U.S. District Courts, compared to 282,307 cases filed in 2010. Although a slight increase in filings from 2001 to 2010 is noted, it is hardly in keeping with the almost 250% increase inÂ DaubertÂ challenges measured using roughly the same time frame. U.S. Court of Appeals filings for thatÂ same time periodÂ were also fairly stable â€“ in 2001 there were 56,067 cases filed as compared to 56,790 in 2010.
Daubert challenges are on the rise.