Are Daubert challenges really weeding out “junk science” and “pseudoscience” in the courtroom, or could it be that they are actually scaring off good, competent experts? Given the numbers alone, one can’t help but wonder.
Since the U.S. Supreme Court’s 1999 decision in Kumho Tire Co. v. Carmichael, which established that the criteria set forth in Daubert applied to other types of expert testimony – not just that of a scientific nature – the number of Daubert challenges has risen sharply. While some increase may not be too surprising – after all, the Kumho decision expanded the pool of experts subject to Daubert criteria – what has perhaps left experts and attorneys scratching their heads is the sheer increase in the number of challenges.
According to a PricewaterhouseCooper study, which looked at Daubert challenges post Kumho, the number of Daubert challenges to all expert witness types increased dramatically in the first decade of 2000. The study looked at federal courts and state courts utilizing Daubert and revealed that Daubert challenges to all types of experts have exploded – in the year 2000 the study noted 253 Daubert challenges, and that figure jumps to 879 in the year 2010 – amounting to an almost 250% increase. In fact, 2010 marked the year with the most Daubert challenges ever.