Leveraging Daubert/Frye Standards In Insurance Litigation for Expert - PowerPoint PPT Presentation

Presenting a live 90-minute webinar with interactive Q&A Leveraging Daubert/Frye Standards In Insurance Litigation for Expert Testimony in State and Federal Court Distinguishing Daubert vs. Frye Standards, Challenging Expert Reliance on Hearsay Articles, Using Daubert/Frye Motions TUESDAY, JULY 12, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Anna P . Engh, Partner, Covington & Burling , Washington, D.C. Michael P . O'Day, Partner, DLA Piper , Baltimore The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

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Leveraging Daubert/Frye Standards In Insurance Litigation for Expert Testimony in State and Federal Court July 12, 2016 Michael P. O’Day DLA Piper LLP (US) 410-580-4293 michael.oday@dlapiper.com

Overview  Daubert/Frye challenges used as rule of evidence to attempt to exclude expert testimony  Development of case law  Interplay of Federal Rules of Evidence (FRE)  Strategic and practical considerations of expert challenges  Case law in insurance litigation 6

Frye v. United States , 292 F. 1013 (D.D. Cir. 1923)  Defendant in murder trial sought to admit polygraph results through expert who gave the exam  Evidence excluded and defendant convicted  “Just when a scientific principle or discovery crosses the line between the experimental and the demonstrable stages is difficult to define. . . . the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs.”  The Frye rule – “general acceptance” standard  Presents problems for admissibility of novel science and theories 7

Daubert v. Merrell Dow Pharm., Inc ., 509 U.S. 579 (1993)  Plaintiff alleged that birth defect was caused by Benedictine ingestion  Offered statistical evidence through experts  Defendant filed for summary judgment  No study showing a causal link  Not supported by any consensus in the medical community 8

Daubert v. Merrell Dow Pharm., Inc ., 509 U.S. 579 (1993)  District Court holds testimony inadmissible citing the Frye “general acceptance” rule  Summary judgment granted  Ninth Circuit affirmed  Supreme Court vacated and reversed decision  Frye “general acceptance” test for determining admissibility of novel scientific evidence is superseded by FRE 702  The trial court is still the “gatekeeper”  Scientific expert testimony must be relevant and reliable  Focus on methodology 9

Daubert v. Merrell Dow Pharm., Inc ., 509 U.S. 579 (1993) Non-exhaustive screening factors: 1. Testing: whether the theory or technique presented as expert testimony and evidence can be (and has been) tested? 2. Peer Review: whether the theory or technique has been subjected to peer review and publication? 3. Rate of Error: what is the known or potential rate of error? 4. General Acceptance: whether there is general acceptance in the relevant scientific community? 10

General Electric Co. vs. Joiner , 522 U.S. 126 (1997)  Plaintiff failed to show that exposure to PCBs was the cause of his lung cancer  Supreme Court further clarifies expert testimony standard  Proper standard of review is abuse of discretion  Trial judge’s authority under “gatekeeping function” includes rationale and conclusions – not just methodologies 11

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)  Tire blow out caused fatal accident  Plaintiff’s expert stated defect in the tire  Physical inspection and no evidence of other issue  Nonscientific expert proof  Summary judgment granted  11 th Circuit reversed and remanded  Finding Daubert limited to scientific testimony 12

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)  Supreme Court states that Daubert applies to all expert witness testimony , including non-scientific and experienced-based testimony  Expands and strengthens gatekeeping role under Daubert  Reliability factors not a definitive checklist, just factors court uses at its discretion  Trial court’s gatekeeping function also to ensure “that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that categorizes the practice of an expert in the relevant field.” 13

FRE 702 Amendment (2000) Rule 702 Testimony by experts . 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 edu-cation, 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.  Qualification, reliability, and fit 14

Application of Daubert/Frye  Daubert standard applies in federal court  Frye replaced by Daubert in most state courts  Some version of Frye still used in a handful of states  E.g., California, Illinois, Maryland, Minnesota, New Jersey, Pennsylvania, and Washington  Unique jurisdictions – North Dakota, North Carolina and South Carolina 15

Frye or Daubert – Does it Really Matter?  Daubert is more liberal than Frye  Initially viewed as pro-plaintiff standard  Daubert is stricter than Frye  Increased involvement of the court  State courts opposed adoption of Daubert  E.g., square-off in Florida  Standard on admissibility does not matter in practice  Importance is judicial awareness of gatekeeping role 16

Frye or Daubert – Does it Really Matter?  Under either standard, it is increasingly common to challenge experts  Courts have wide latitude in performing gate- keeping role  Courts have wide latitude in determining how to measure reliability  Expert challenge may have a huge impact on case 17

Use of Experts in Insurance Disputes  Insurance disputes routinely involve experts  Issues that are outside purview of a lay person  Issues that jury could use expert’s help understanding  Damages (lost profits; economic loss)  Valuation (property loss; business interruption)  Causation (covered by policy; subrogation)  Conduct (handling of claims and related practices) 18

Impact on Case Management  Timing and sequence of Rule 26 expert disclosures  Pretrial discovery and production of expert files  Investigative discovery outside the rules  Timing and sequence of expert depositions  Expert rebuttal  Build enough time into the schedule 19

Impact on Case Management  Timing of a Daubert motion (FRCP 16, Local Rules, Judicial Preference)  At close of expert discovery; or  At same time as dispositive motion; or  As part of motions in limine .  On average, federal courts take 84 days to rule on Daubert motion (James Cooper, Timing and Disposition of Daubert Motions in Federal District Courts: An Empirical Examination , George Mason University School of Law (2015)) 20