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In Case You Hadn’t Heard… Daubert Challenges Were Down in 2011

by Rebekah Smith

PwC just issued their annual Daubert Challenges to Financial Experts: A yearly study of trends and outcomes.  Always an interesting study to read, here are a few excerpts from the report, which you can download for free if you follow the link above:

  • Of all the expert testimony challenged during 2000-2011, 45% was excluded in whole or in part, and 50% was admitted
  • The percentage of all experts excluded in whole or in part decreased to 43% in 2011, down from the 2010 and 2009 exclusion rates of 49% and 45%, respectively.
  • The percentage of successful challenges has remained relatively consistent over the past 10 years, with the highest percentage (50%) in 2003 and the lowest (41%) in 2002

Also, in the Sixth Circuit, we had the highest number of challenges to financial experts in 2010 (24) and the second highest in 2011 (14 while the highest was 19).  The success rate was 46%, a little above average, when those challenges were levied.

I was particularly intrigued to see that the pure number of challenges to financial experts had fallen to the lowest level in six years as did the number of successful challenges. HOWEVER, the percentage of success increased to a six year high.  Can we conclude from this that instead of the previous trends of always filing a motion, that litigants are more selective and only filing motions on cases where there is a high likelihood of success, thus leading to the higher exclusion rate?  It is an interesting trend and one that can perhaps be attributed to the fact that it can be costly to file a Daubert motion and, if necessary, have a hearing on that motion. 

What do you think?  Why the downward trend in the number of motions to exclude but an increase in the success rate?

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