Steven Babitsky, Esq.
An expert who is retained by counsel as an expert witness has a Daubert or similar challenge filed against her. The Daubert motion is received by counsel. Does counsel have an obligation to notify the expert witness that the motion has been filed?
There are many reasons that counsel needs to promptly inform the expert about the Daubert motion. These reasons include:
- The expert’s reputation is on the line. If Dauberted out, the expert witness will invariably face questions about the case for years to come. Depending on the circumstances and the language of the judge in her decision, the expert’s future viability as an expert witness may be at stake.
- Counsel has an obligation to act with competence and due care in representing clients. Informing the expert of the Daubert motion may be required by counsel’s ethical duty to represent a client competently. When informed of the Daubert motion, the expert may provide crucial information to help defend the motion, including: past Daubert challenges, briefs, helpful factual data, methodology answers, etc. The failure to permit the input of the expert witness can adversely impact the chances of defeating the motion and thus adversely affect the client’s interest.
- Maintaining a good working relationship with the expert. Counsel should promptly inform the expert of the challenge to maintain a good working relationship in the case at hand as well as other pending and future cases.
- Contractual Duty. Thousands of expert witnesses using the SEAK or similar retention contracts specifically require that:
…counsel promptly provide the expert with notice of any Daubert motions, Frye motions, motions in limine, or other pre-trial motions made by other parties or persons to restrict, exclude, or in any way limit expert’s testimony or expert’s participation in the underlying legal matter.
Counsel who has signed this or a similar retention agreement has a legal obligation to provide such notice. Here is an example of what is happening all too often when a Daubert motion is filed:
Example: Medical Expert Daubert Challenge
The medical expert in this case commented on the standard of care and causation. After her deposition, opposing counsel filed a Daubert motion to exclude her testimony. Counsel never informed the expert about the motion. Months later, counsel informed the expert that her testimony was excluded but they should “not worry as it was not a big deal.” The expert witness was very upset about not being informed of the motion when it was pending. She was not permitted any input in the reply brief. The expert was particularly upset because she had a clause in her retention contract signed by counsel providing for prompt notice of such a motion.
For the reasons stated above, counsel has an obligation to promptly notify their expert witness when a Daubert or similar motion is filed.
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