MOTION TO EXCLUDE EXPERT TESTIMONY (DAUBERT)

[IN THE UNITED STATES DISTRICT COURT]

[FOR THE _____________ DISTRICT OF _____________]

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Case Caption:

[________________________________]
Plaintiff(s),

v.

[________________________________]
Defendant(s).

Case Number: [________________________________]

Judge: Hon. [________________________________]

Magistrate Judge: Hon. [________________________________]

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[PLAINTIFF'S/DEFENDANT'S] MOTION TO EXCLUDE

THE EXPERT TESTIMONY OF [EXPERT NAME]

PURSUANT TO FEDERAL RULE OF EVIDENCE 702

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INTRODUCTION

[Plaintiff/Defendant] [________________________________] ("Movant"), by and through undersigned counsel, respectfully moves this Court pursuant to Federal Rule of Evidence 702, Federal Rule of Evidence 104(a), and the standards established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny, for an order excluding the testimony of [________________________________] ("the Expert"), [Plaintiff's/Defendant's] proffered expert witness.

As set forth below, the Expert's opinions should be excluded because they:

☐ Are not based on sufficient facts or data
☐ Are not the product of reliable principles and methods
☐ Do not reflect a reliable application of those principles and methods to the facts of this case
☐ Fail to satisfy the amended Federal Rule of Evidence 702 standards
☐ Would not assist the trier of fact

In support of this Motion, Movant states as follows:

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STATEMENT OF FACTS

A. Procedural Background

1. This action was filed on [__/__/____].

2. [Opposing party] designated [________________________________] as an expert witness on [__/__/____].

3. The Expert submitted a written report dated [__/__/____], a copy of which is attached as Exhibit A.

4. The Expert was deposed on [__/__/____]. Relevant excerpts from the deposition transcript are attached as Exhibit B.

5. [Add additional procedural facts as relevant]

B. The Expert's Qualifications

6. According to the Expert's curriculum vitae (attached as Exhibit C), the Expert:

a. [________________________________]

b. [________________________________]

c. [________________________________]

7. [Describe relevant qualifications or lack thereof]

C. The Expert's Proffered Opinions

8. In the Expert's report, the Expert opines that:

a. [________________________________]

b. [________________________________]

c. [________________________________]

9. [Summarize the key opinions being challenged]

D. The Expert's Methodology

10. The Expert purports to base these opinions on the following methodology:

a. [________________________________]

b. [________________________________]

c. [________________________________]

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LEGAL STANDARD

A. Federal Rule of Evidence 702

Federal Rule of Evidence 702, as amended effective December 1, 2023, provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

Fed. R. Evid. 702.

B. The Daubert Standard

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held that trial judges serve as "gatekeepers" responsible for ensuring that expert testimony rests on a reliable foundation and is relevant to the task at hand. Id. at 589, 597.

The Court identified several non-exclusive factors for assessing reliability:

☐ (1) Testability - Whether the theory or technique can be (and has been) tested;

☐ (2) Peer Review - Whether the theory or technique has been subjected to peer review and publication;

☐ (3) Error Rate - The known or potential rate of error and the existence and maintenance of standards controlling the technique's operation;

☐ (4) General Acceptance - Whether the theory or technique has attracted widespread acceptance within a relevant scientific community.

Id. at 593-94.

C. Extension to All Expert Testimony

In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court extended the gatekeeping obligation to all expert testimony, including non-scientific experts. The Court emphasized that trial courts have "the same kind of latitude in deciding how to test an expert's reliability... as it enjoys when it decides whether or not that expert's relevant testimony is reliable." Id. at 152.

D. Burden of Proof

The 2023 amendments to Rule 702 clarify that "the proponent [must] demonstrate to the court that it is more likely than not" that the admissibility requirements are satisfied. Fed. R. Evid. 702 advisory committee's note to 2023 amendment. This preponderance of the evidence standard applies to each of the Rule's requirements.

E. Standard of Review

The trial court's decision to admit or exclude expert testimony is reviewed for abuse of discretion. General Electric Co. v. Joiner, 522 U.S. 136, 141 (1997).

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ARGUMENT

I. THE EXPERT'S TESTIMONY SHOULD BE EXCLUDED BECAUSE IT IS NOT BASED ON SUFFICIENT FACTS OR DATA [FRE 702(b)]

[Present argument that the expert's opinions lack adequate factual foundation]

A. The Expert Relies on Incomplete or Inaccurate Facts

[________________________________]
[________________________________]
[________________________________]

B. The Expert Ignores Critical Data

[________________________________]
[________________________________]
[________________________________]

C. The Expert's Factual Assumptions Are Unsupported

[________________________________]
[________________________________]
[________________________________]

See, e.g., [cite relevant case law]

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II. THE EXPERT'S TESTIMONY SHOULD BE EXCLUDED BECAUSE IT IS NOT THE PRODUCT OF RELIABLE PRINCIPLES AND METHODS [FRE 702(c)]

[Present argument that the expert's methodology is unreliable]

A. The Methodology Has Not Been Tested

[________________________________]
[________________________________]
[________________________________]

☐ The Expert's methodology cannot be tested
☐ The Expert's methodology has never been tested
☐ Testing of the methodology has produced negative results

B. The Methodology Has Not Been Subjected to Peer Review

[________________________________]
[________________________________]
[________________________________]

☐ No peer-reviewed publications support this methodology
☐ Peer review has criticized this methodology
☐ The methodology is unique to this litigation

C. The Error Rate Is Unknown or Unacceptably High

[________________________________]
[________________________________]
[________________________________]

☐ The Expert has not established an error rate
☐ The known error rate undermines reliability
☐ No standards exist to control error

D. The Methodology Lacks General Acceptance

[________________________________]
[________________________________]
[________________________________]

☐ The methodology is not generally accepted in the relevant community
☐ The methodology has been rejected by mainstream practitioners
☐ Only a small minority of experts use this approach

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III. THE EXPERT'S OPINIONS DO NOT REFLECT A RELIABLE APPLICATION OF PRINCIPLES AND METHODS TO THE FACTS [FRE 702(d)]

[Present argument regarding analytical gap between data and conclusions]

A. There Is an Analytical Gap Between the Expert's Data and Conclusions

[________________________________]
[________________________________]
[________________________________]

"[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Joiner, 522 U.S. at 146.

B. The Expert's Application Is Flawed

[________________________________]
[________________________________]
[________________________________]

C. The Expert Overstates Conclusions

[________________________________]
[________________________________]
[________________________________]

The 2023 amendments emphasize that "the expert's opinion must stay within the bounds of what can be concluded from a reliable application of the expert's basis and methodology." Fed. R. Evid. 702 advisory committee's note.

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IV. THE EXPERT'S TESTIMONY WILL NOT ASSIST THE TRIER OF FACT [FRE 702(a)]

[Present argument regarding lack of helpfulness/relevance]

A. The Expert's Opinions Are Not Relevant to the Issues in This Case

[________________________________]
[________________________________]
[________________________________]

B. The Expert's Testimony Will Confuse Rather Than Assist the Jury

[________________________________]
[________________________________]
[________________________________]

C. The Expert Offers Opinions on Matters Not Requiring Expert Testimony

[________________________________]
[________________________________]
[________________________________]

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V. THE EXPERT IS NOT QUALIFIED TO RENDER THE PROFFERED OPINIONS

[Present argument regarding lack of qualifications, if applicable]

A. The Expert Lacks Necessary Expertise

[________________________________]
[________________________________]
[________________________________]

B. The Expert Is Testifying Outside Their Area of Expertise

[________________________________]
[________________________________]
[________________________________]

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VI. ADDITIONAL GROUNDS FOR EXCLUSION

[Present any additional arguments]

A. [Additional Argument]

[________________________________]
[________________________________]

B. [Additional Argument]

[________________________________]
[________________________________]

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SPECIFIC OPINIONS TO BE EXCLUDED

Based on the foregoing, the following specific opinions should be excluded:

Opinion	Basis for Exclusion
[________________________________]	☐ 702(b) ☐ 702(c) ☐ 702(d) ☐ 702(a)
[________________________________]	☐ 702(b) ☐ 702(c) ☐ 702(d) ☐ 702(a)
[________________________________]	☐ 702(b) ☐ 702(c) ☐ 702(d) ☐ 702(a)
[________________________________]	☐ 702(b) ☐ 702(c) ☐ 702(d) ☐ 702(a)

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REQUEST FOR DAUBERT HEARING

Movant respectfully requests that the Court schedule a Daubert hearing to allow the parties to present evidence and argument regarding the admissibility of the Expert's testimony.

☐ Movant requests an evidentiary hearing
☐ Movant requests oral argument
☐ Movant submits this motion may be decided on the papers

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CONCLUSION

For the foregoing reasons, [Plaintiff/Defendant] [________________________________] respectfully requests that this Court:

1. Grant this Motion to Exclude Expert Testimony;

2. Enter an order excluding the testimony of [________________________________] in its entirety, or in the alternative, excluding the specific opinions identified above;

3. Schedule a Daubert hearing at the Court's earliest convenience;

4. Grant such other and further relief as the Court deems just and proper.

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Respectfully submitted,

Dated: [__/__/____]

[________________________________]
Attorney for [Plaintiff/Defendant]
Bar Number: [________________________________]
Firm Name: [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

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CERTIFICATE OF CONFERENCE

Pursuant to Local Rule [____], the undersigned certifies that:

☐ Counsel for Movant conferred with counsel for [opposing party] regarding this Motion on [__/__/____]

☐ [Opposing party] ☐ opposes / ☐ does not oppose this Motion

☐ The parties were unable to reach agreement on the issues raised herein

Signature: [________________________________]
Date: [__/__/____]

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CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Motion, together with all exhibits, was served upon all counsel of record by:

☐ Electronic filing (ECF/CM)
☐ Email
☐ First-class mail
☐ Hand delivery

Served Upon:

[________________________________]
Attorney for [________________________________]
[________________________________]
[________________________________]
Email: [________________________________]

Signature: [________________________________]
Date: [__/__/____]

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EXHIBITS

☐ Exhibit A: Expert Report of [________________________________]
☐ Exhibit B: Deposition Transcript Excerpts of [________________________________]
☐ Exhibit C: Curriculum Vitae of [________________________________]
☐ Exhibit D: [________________________________]
☐ Exhibit E: [________________________________]

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PROPOSED ORDER

A proposed order granting this Motion is attached for the Court's convenience.

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[PROPOSED] ORDER GRANTING MOTION TO EXCLUDE EXPERT TESTIMONY

Case Number: [________________________________]

Upon consideration of [Plaintiff's/Defendant's] Motion to Exclude Expert Testimony of [________________________________] pursuant to Federal Rule of Evidence 702, any opposition thereto, [and the evidence and argument presented at the Daubert hearing held on ___________,] it is hereby:

ORDERED that the Motion is GRANTED [in its entirety / in part];

ORDERED that the testimony of [________________________________] is EXCLUDED [in its entirety / with respect to the following opinions: _______________________];

ORDERED that [________________________________].

SO ORDERED this [____] day of [________________________________], 20[____].

___________________________________
Hon. [________________________________]
United States District Judge

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SOURCES AND REFERENCES

• Federal Rules of Evidence Rule 702
• Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
• General Electric Co. v. Joiner, 522 U.S. 136 (1997)
• Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
• 2023 Amendments to Federal Rule of Evidence 702
• Expert Institute - Daubert Standard Guide
• Cornell LII - Daubert Standard

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This template is provided for informational purposes only and does not constitute legal advice. Laws and procedural requirements vary by jurisdiction. Consult with a licensed attorney in your jurisdiction before use.