In Alderman v. Clean Earth, Inc., et al., (Del. Super., June 26, 2007), read opinion here, the Superior Court denied a motion for reargument and granted a motion in limine to exclude the most critical portions of plaintiffs’ expert reports at trial due to the failure of both experts to comply with the Daubert criteria. Congratulations to my partner, Sharon Morgan, who was the prevailing party and who sent me a copy of the opinion.
Daubert is the U.S. Supreme Court decision that, in essence, requires trial judges to be gatekeepers for experts.[See 509 U.S. at 579]. The Delaware Supreme Court has applied the Daubert decision by adopting a 5-part test to determine whether certain scientific expert testimony is admissible pursuant to Delaware Rules of Evidence (DRE) 702; 401;402; and 703. The DRE are based on the federal rules. See here at pages 7 and 8 of the memorandum opinion of the Superior Court, citing the Delaware Supreme Court’s decision in Tolson v. State, 900 A.2d 639, 645 (Del. 2006) adopting Daubert. See also Bowen v. E.I. duPont de Nemours & Co., Inc., the Delaware Supreme Court’s other 2006 decision that also discussed the 5-factor test formulated by the Delaware Supreme Court to apply Daubert, briefly highlighted here on this blog.
At page 4 of the opinion denying a motion for reargument on the decision to exclude (largely and for all practical purposes) the expert opinions of the plaintiffs, Judge Silverman explains in helpful detail the process that an expert should use in preparing an expert opinion (as opposed to relying too much on facts by others and not making sufficient personal inspections "on site".)
"Under the scientific method, first, the expert gathers information, including empirical observations, to form a hypothesis. Forming a hypothesis, however, is only the first step. The next step requires testing the hypothesis by collecting data and performing experiments. Then, the data is analyzed to prove or disprove the hypothesis." (citations omitted.)
See generally, here for a short summary on this blog (and link to full decision) of another Superior Court decision requiring a Daubert hearing to determine admissiblity of an expert report that also allegedly relied too heavily on "second-hand" information.