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Daubert Motions Are More Common Than You Might Think
If you've hired an expert, chances are that you have had to fight a dreaded Daubert* challenge. From 2000-2018 there were more than 15,700 challenges, 80% of which were non-financial expert challenges, and 20% financial expert challenges. About half (47%) of the financial challenges resulted a Daubert motion's exclusion of an expert's testimony. (source: PWC 2019 Daubert Report). If your non-financial expert conducts a survey, upwards of 36% resulted in a Daubert motion during the same time period. (source: Daubert's Impact on Survey Experts in Lanham Act Litigations, Kenneth Plevan, TMR, Vol. 95, pp. 596-614.)
Intellectual Property Survey Analysis 1998-2018**
An analysis of 1,094 Intellectual Property Surveys shows that about 14% result in the exclusion of an expert's testimony. Some types of surveys are Dauberted more often than others. Likelihood of Confusion surveys result in 16% being excluded while Fame surveys are a mere 2%:
Survey evidence Daubert motions reached their peak in 2012, with likelihood of confusion surveys leading the way:
Should You Hire an Expert with Daubert History?
For experts who are new to providing survey testimony, or have only provided it a few times, they may not have yet been Dauberted, especially given specific types of cases (see above). However, given the number of Lanham Act surveys conducted by leading experts in this field (i.e. 50+ surveys), most have experienced a Daubert Challenge and have seen their testimony excluded. The key is understanding what percentage of their surveys have been Dauberted and why.
- If your expert's qualifications have been Dauberted, seriously reconsider your choice
- If your expert's scientific method has been questioned, seriously investigate your choice
- If your expert's procedures or case relevance have been questioned, find out what happened and evaluate for yourself
This standard comes from the Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). Under the Daubert standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.
The Daubert standard is the test currently used in the federal courts and some state courts. In the federal court system, it replaced the Frye standard, which is still used in some states. In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the Supreme Court clarified Daubert, holding that an appellate court may still review a trial court's decision to admit ot exclude expert testimony. The standard of review for this inquiry is the abuse of discretion standard. In Kumho Tire Co. v. Carmichael 526 U.S. 137 (1999), the Supreme Court further clarified that the Daubert factors may apply to non-scientific testimony, meaning "the testimony of engineers and other experts who are not scientists."
Rule of Evidence 702
The federal courts are all governed by the Daubert standard. Each state also has a Rule of Evidence defining the rules under which an expert can testify: Rule 702 of the Federal Rules of Evidence. Rule 702 makes no distinction between “scientific knowledge” and “technical knowledge” or “other specialized knowledge.” Under Federal Rule 702, persons that are qualified as experts based on knowledge, skill, experience, training, or education are permitted to offer expert opinion testimony if the following conditions have been met:
- The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue
- The testimony is based on sufficient facts or data
- The testimony is the product of reliable principles and methods
- The expert has reliably applied the principles and methods to the facts of the case
** Source: Intellectual Property Surveys Annual Cumulative Update 1998-2018, Matthew Ezell.
Rhonda Harper Expert Witness
Rhonda Harper is routinely retained to formulate expert surveys, conduct rebuttal critiques, or construct rebuttal surveys to show the potential difference in results with properly designed and executed surveys. She has extensive experience and a deep understanding of survey design, sampling, question construction, data analysis, and methodological pitfalls that introduce bias or systematic error.
Located in Dallas, TX, Rhonda Harper is a former Fortune 100 C-Suite Executive in marketing, branding, consumer research, strategy, licensing, and advertising. Also a former Adjunct Marketing Professor, she has been retained by more than 95 law firms since 2005. Harper has a focus on Trademark and Trade Dress Infringement, Misleading and Deceptive Advertising, Licensing, and Commercial Reasonableness cases. She has conducted 50+ intellectual property Lanham Act surveys, produced 75+ reports, been deposed 50+ times, and served in 20+ trials and arbitrations.