What Happens When an Expert is Excluded?
As practiced, motions in limine are sometimes preposterous.
The basic concept is sensible enough. Some evidentiary rulings can reliably be made on the spot (“And what did you learn from the conversation?” “Hearsay!”). But for complicated or important evidence the court benefits from detailed briefing and the opportunity to think about the issues for more than ten seconds before rendering a decision. The parties also benefit from knowing what evidence is or is not fair game before making opening statements. So, the court orders the parties to reduce key evidentiary disputes to motions in limine in advance of trial and rules upon them shortly before it starts.
This generally works well enough for individual pieces of paper. While some lawsuits turn on a “smoking gun” email, most cases either involve evidence unlikely to face challenge (like eyewitness testimony or party admissions) or are robust enough to survive even if a particular exhibit is struck. But a motion in limine is an extremely slippery device. And some parties will seek sweeping in limine rulings that all-but-decide a case. One species of such motions, the “motion in limine to reconsider my summary judgment motion” is common and annoying but routinely receives the back of the hand from the courts.
But another major species of outcome-determinative motion in limine was invented by the courts themselves and is more likely to receive a serious hearing. And that’s the motion to exclude expert testimony, sometimes called a Daubert motion because of the Supreme Court case articulating the standard for exclusion in federal court. A successful Daubert motion can totally rewrite the strategy at trial and even make some trials effectively impossible to win. And unlike motions to dismiss or motions for summary judgment, Daubert motions and Daubert rulings can come painfully close to trial, after a lot of the strategy and preparation work has already been done.
But what happens after an expert is excluded? And other than hiring a better expert, how can you protect yourself against the consequences of an adverse Daubert ruling?
The first thing to ask yourself when an expert goes down for the count is – do you need them to win? Obviously, you’d never offer an expert that wasn’t at least helpful in winning at trial, but there’s a big difference between an expert who adds persuasive force to an argument that you could make anyway and an expert whose testimony is the evidence that you need to prove causation or damages. These exist on a continuum of course and moving from Plan A to Plan B because of an excluded expert can fall anywhere between a trivial inconvenience to the effective end of a case.
If the expert was important, the second question that you ask yourself is whether you can swap in a replacement. This is easier said than done! Numerous courts have rejected efforts to reopen expert discovery and substitute a new expert in the face of a successful Daubert motion. [1] Often these decisions are accompanied by pithy admonitions that “the Federal Rules of Civil Procedure do not guarantee Plaintiff a do-over just because his expert witness was disqualified”[2] or that “the litigation process does not include a dress rehearsal or practice run for the parties.”[3]
While the prospects of a “do-over” expert are generally poor, there are circumstances where it may work. For example, in Summers v. Missouri R.R. System, [4] two plaintiffs sued a railroad claiming that exposure to toxic diesel fumes had rendered them permanently disabled. The trial court excluded the plaintiffs’ medical experts on Daubert grounds, finding that one was peddling a discredited “multiple chemical sensitivity” diagnosis and that the other was a psychologist with no expertise in internal medicine or toxicology.
Following the exclusion, the plaintiff immediately filed a motion to serve a new expert report and managed to get that expert report together for submission to the court prior to being heard on the motion. The trial court rejected the motion anyway, but on review, the 10th Circuit reversed, holding that, given that the trial was still months away, refusing to allow the replacement expert when there was ample time to depose and examine him was an abuse of discretion. The court placed particular emphasis on the fact that the defendants already had their own medical expert on the issue and would not need to find or hire another one. Notably, one of the panelists dissented, writing that the plaintiff had not shown that the new expert was sufficiently different than the old ones to pass muster.
A similar result was reached in Brown v. China Integrated Energy, Inc. [5] Brown was a securities class action in which the court denied plaintiffs’ motion for class certification after finding their market efficiency expert to be unreliable. The plaintiffs sought leave to submit a new expert, and the defendant moved to dismiss the case. The court acknowledged the legion of authorities entitling it to deny the plaintiff’s motion and dismiss the case outright. But it also noted that the case was still in its early stages, as discovery had not fully closed. The court instead granted the application and permitted the plaintiffs to hire a new expert.
So, what can we glean from this and how can we protect ourselves from a catastrophic expert exclusion on the eve of trial?
The first thing that you can do is to make every effort to ensure that expert issues are addressed early in the case. While motions in limine are often raised in the shadow of a scheduled trial, that’s by no means required and courts have the right to schedule them in a more sensible way. If key issues in the case are going to be proven exclusively through expert testimony, consider requesting a schedule that resolves Daubert challenges during discovery, when you can still argue that there is time for a replacement, rather than at the very end of a case.
The second thing that you can do is to have your replacement expert waiting in the wings. In an ideal world, you’d just submit multiple expert reports on critical topics or for tricky issues. And sometimes the economics of the case will justify that. But where it does not, consider at least locating a replacement expert whenever your expert is seriously challenged. That way, if things go poorly for your expert, you’ll be asking for permission to identify a specific person right now, not permission to take a few months to “go find somebody.”
And third, where the case permits it, take steps to develop your “Plan B” in advance. There are some cases and some issues that naturally incline themselves to proof by experts. But so long as the law does not literally require expert testimony, give attention during discovery to how you could prove your case without one. This may mean producing documents that you would otherwise fight over or preparing your fact witnesses to testify about “expert adjacent” issues in depositions. It may not be the best way to try your case or the one that gives you the greatest chance of success. But if you suddenly receive a last minute order excluding the expert you counting on, you’ll be glad that you thought ahead.
[1] See Pride v. BIC Corp., 218 F.3d 566, 579 (6th Cir. 2000) (“reopening the proceedings would be ‘contrary to all rules of fairness and proper procedure’”); see also Exist, Inc. v. Tokio Marine Am. Ins. Co., Case No. 22-CV-1679 (AT) (BCM), 2023 WL 7117369, at *4 (S.D.N.Y. Oct. 5, 2023) (collecting cases).
[2] Martins v. Sherwin-Williams Co., Case No. 22-CV-3520 (BMC), 2024 WL 641383, at *2 (E.D.N.Y. Jan. 10, 2024) (“The Federal Rules of Civil Procedure do not guarantee plaintiff a do-over just because his expert witness was disqualified.”).
[3] Winters v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007) (“The litigation process does not include “a dress rehearsal or practice run” for the parties”).
[4] 132 F.3d 599 (10th Cir. 1997).
[6] 2014 WL 12577131 (C.D. Cal. Nov. 21, 2014).
