Beyond Reliable: Challenging Expert Witness Admissibility in United States Courts

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Abstract

In the more than two decades since the Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, there has been considerable legal research devoted to the issue of expert witness admissibility, underscoring the centrality of scientific and expert knowledge in modern courtrooms. Existing scholarship, however, focuses largely on admissibility challenges based on expert reliability; this work largely ignores independent grounds for contesting witnesses, which include allegations that witnesses lack sufficient qualifications, that their testimony would be irrelevant, or that they have failed to comply with procedural rules. In this Article, I use an original dataset of recent patent infringement, discrimination, and medical malpractice case law to examine the ways in which expert admissibility is contested in court. I also present statistical analyses that identify the relative frequencies of different kinds of admissibility challenges and their respective likelihoods of successfully excluding expert testimony. Overall, this Article documents the range of expert admissibility challenges used in United States Courts and finds that certain kinds of challenges are more successful than others. Although Daubert emphasizes expert reliability, this analysis shows that admissibility challenges based on witnesses’ qualifications, relevance, and on procedural violations are each more likely to lead to the exclusion of expert testimony.

Author

• Timothy L O'Brien, University of Evansville