Timeliness of a Daubert Objection

Bruce Burk

Tampa, FL (WorkersCompensation.com) – All workers’ compensation claims can run into issues with a Daubert Objection. Daubert, as you may know, references a U.S. Supreme Court case that dealt with whether certain medications could cause birth defects. In the opinion, the Supreme Court Justices laid out a standard for the admission of scientific or technical evidence in the federal court system. Many states have adopted the Daubert standard in their state court system as well.

A “Daubert Objection” is the accusation that testimony from an expert witness does not comply with all or some of the above referenced requirements. The elements of the Daubert standard 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.

It should be noted that the last element incorporates the Frye standard which was the standard for the admission of scientific or technical evidence prior to the Daubert opinion. Fyre is typically thought of as a much lower, less specific standard.

When it comes to workers’ compensation, judges are not uniform with their thoughts on the Daubert standard. Some sustain the objection, while others feel that they can use the objection to evaluate the credibility of the doctor instead of excluding the evidence from the record.

When raising a Daubert Objection, it is important to understand how timeliness can affect your ability to make the argument in court. If a Daubert Objection is not properly made and preserved it can be considered waived at trial.

Doctors in workers’ compensation typically give their testimony in the form of a deposition. It is here when the Daubert objection needs to be made on the record. The Daubert objection should reference the 5 elements of the standard listed above and the reasons that the testimony of the doctor falls short. The other side is then given the opportunity to re-direct the doctor and rehabilitate or clarify the doctor’s testimony to demonstrate that the doctor has complied with the Daubert standard. If the objection is not made at the doctor’s deposition, it will likely be considered waived.

But objecting during the doctor’s deposition is not the only thing you have to do. Many states also require that the objection is then brought to the attention of the court in a timely fashion. In other words, the safest thing to do following a doctor’s deposition is to file a Motion to Strike the testimony of the doctor. This motion should include the basis of the Daubert objection. It is then the court’s prerogative if it wants to hear the motion prior to trial or allow the parties to make their arguments at final hearing. If the arguments are saved for the final hearing, a pre-trial motion in limine can be made to ask the court to exclude the testimony of the doctor.

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