Commercial Litigation and Arbitration

Experts —Daubert Factors — Third Circuit

From Zombeck v. Amada Am., Inc., 2009 U.S. Dist. LEXIS 6443 (W.D. Pa. Jan. 29,. 2009):

In assessing the reliability of a proffered expert's testimony, a trial court must focus not on the substance of the expert's conclusions, but on whether those conclusions were generated by a reliable methodology. Daubert, 509 U.S. at 590. To assist district courts in determining whether an expert opinion is reliable, the Third Circuit has set forth a number of non-exclusive factors that may be considered:

(1) whether the expert's technique or theory can be or has been tested;

(2) whether the conclusions have been published and subjected to peer review;

(3) the potential or known error rate;

(4) the existence and maintenance of standards controlling the technique's operation;

(5) whether the expert's conclusions have gained general acceptance in the relevant scientific community;

(6) the relationship of the technique to methods that have been established to be reliable;

(7) the qualifications of the expert witness testifying based on the methodology; and

(8) the non-judicial uses to which the method has been put.

Pineda v. Ford Motor Co., 520 F.3d 237, 247-48 (3d Cir. 2008). These factors are not a "definite checklist or test"; instead, this reliability test is "a flexible one," where the court "may consider one or more" of the factors, depending on the facts of the particular case. Kumho Tire, 526 U.S. at 150. Because Harkness is an engineer and his testimony is more "technical" than "scientific," the Court has great discretion in determining how to assess his reliability. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151-52 (1999). The fact that Harkness is qualified to render such an opinion, as discussed above, argues in favor of finding his opinions to be sufficiently reliable. See In re TMI Litig., 193 F.3d at 664-65.

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