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Resolving Daubert Challenges

Trial

    By the time a jury is seated, the expert's report will have been filed, a deposition of the expert conducted, any motions in limine resolved, and the parties' witness lists and pretrial statements finalized.  But if there remains the slightest doubt whether the trial court's pretrial evidentiary rulings were "definitive" within the meaning of Fed. R. Evid. 103(a), the wise course is to make a new offer of proof, or renew the Daubert objection, lest appellate scrutiny on the point be limited to review for plain error.

    Counsel whose motions to strike have been denied, on the theory that their Daubert objections went to weight and not admissibility, should draw comfort.  They may now cross-examine at will on those subjects.

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