To be admissible, expert testimony must be reliable under the standards first articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and adopted by the Louisiana Supreme Court in State v. Foret, 628 So. 2d 1116 (La. 1993). Code of Civil Procedure art. 1425(F) provides a detailed procedure for bringing motions in limine to exclude an expert’s testimony under Daubert. Article 1425(F)(1) begins with permissive language rather than mandatory language: “Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable” under the Code of Evidence. Query: To challenge an expert under Daubert, must a party file and pursue a motion under art. 1425(F), or may the challenging party reserve the Daubert objection for trial?
At least three Louisiana courts of appeal have suggested that the challenging party must bring the Daubert challenge by pre-trial motion. To my knowledge, the first court to do so in a civil case was the Louisiana Fourth Circuit in Brown v. Schwegmann, 958 So. 2d 721 (La. App. 4 Cir. 2007).
The defendant-appellant in Brown argued on appeal that the plaintiff’s expert on damages used a deficient methodology in his calculations. The appellant’s main problem was failure to object to the expert’s testimony at trial. But the Fourth Circuit also noted that the appellant “failed to move for a Daubert hearing as to the admissibility of [the expert’s] testimony prior to trial.” Id. at 724. The court held that the appellant failed to preserve his Daubert challenge for two reasons. The first was his failure to object at trial. The second was his failure to file a pre-trial Daubert motion. “[W]hen the objecting party fails to request a Daubert hearing, objections to the admissibility of an expert witness’s testimony under Daubert are not preserved for appeal.” Id.
Since Brown was decided, two more Louisiana courts of appeal in civil cases have followed its pronouncement concerning the necessity of a pre-trial hearing to preserve a Daubert challenge for appeal. See Harris v. State, Dept. of Transp. & Dev., 997 So. 2d 849, 868 (La. App. 1 Cir. 2008), and Wilczewski v. Brookshire Grocery Store, 2 So. 3d 1214, 1223–24 (La. App. 3 Cir. 2009).
These decisions appear to illustrate a more general principle: when the Code of Civil Procedure or other legislation establishes a specific procedure for obtaining a particular ruling from a trial court, litigants must follow that procedure to preserve the issue for appeal. This principle accords with the definition of preservation of error that we saw in the first post of this series: that preservation of error requires “the taking of all steps necessary under the rules of procedure ... in bringing an improper act or statement to the trial court’s attention ....” Black's Law Dictionary 1375 (Bryan A. Garner, ed., 10th ed.,Thomson Reuters 2014).
This analysis raises another question: do Brown and similar cases apply to an argument that a witness is not qualified as an expert? Whether a witness qualifies as an expert is a distinct question from whether the witness’s opinions are reliable under Daubert. See Cheairs v. State, Dept. of Transp. & Dev., 861 So. 2d 536, 542–43 (La. 2003). Brown and the cases following it were concerned with Daubert challenges, not challenges to the witnesses’ qualifications as experts. Yet the legislation on which they are based, La. Code Civ. P. art. 1425(F), applies to both the witness’s qualification as an expert and the reliability of the witness’s opinions under Daubert.
I don’t know the answer to this question. Traditionally, the ruling on a witness’s qualification as an expert does not occur until trial, and only after the proponent of the witness’s testimony has elicited testimony establishing the witness’s qualifications.
Usually, this question is moot because a motion in limine to exclude expert testimony usually includes an attack on the witness’s qualifications if a credible attack can be made. My suggestion to anyone seeking to exclude purported expert testimony for any reason is to file a motion under art. 1425(F) and to include in the motion all arguments against admissibility of the purported expert’s opinions.