Criminal Defense Lawyers

Winning Daubert Challenges Against Junk Science in Counterfeiting Cases

Winning Daubert Challenges Against Junk Science in Counterfeiting Cases

Counterfeiting cases often rely on questionable scientific evidence and expert testimony. Brand owners frequently want to introduce forensic techniques to try to prove that a product is counterfeit. However, many of these techniques have not been scientifically validated and amount to junk science. Successfully challenging this unreliable evidence through Daubert motions can make or break a counterfeiting defense.

The Daubert standard, established in Daubert v. Merrell Dow Pharmaceuticals, requires judges to act as gatekeepers regarding the admissibility of expert testimony. Under Daubert, judges must assess whether the methodology and principles underlying the expert testimony are scientifically valid and reliable. This gives courts the ability to exclude junk science that does not meet scientific standards.

In counterfeiting cases, Daubert motions are crucial to prevent unfounded accusations based on pseudoscience. Here are some tips for developing successful Daubert challenges against questionable forensic techniques in counterfeiting litigation:

Scrutinize the Expert’s Methodology

The first step is to thoroughly examine the methodology used by the expert witness. Determine if the technique has been empirically tested and subject to peer review. Methods accepted in the scientific community are more likely to pass Daubert scrutiny. Be wary of proprietary techniques developed solely for litigation purposes.

Also assess the technique’s error rate. A reliable scientific method should have known error rates that can be measured and accounted for. Methods with unacceptably high error rates should face exclusion under Daubert.

Finally, examine whether the methodology has been applied properly to the facts of the case. Even reliable techniques can produce unreliable conclusions if misapplied or stretched beyond their validated capabilities.

Look for Analytical Gaps

Many forensic techniques used in counterfeiting cases involve significant analytical gaps that undermine reliability. For example, an expert may visually examine a product and testify that certain tool marks or materials indicate counterfeiting. But the expert’s specific conclusions often do not logically flow from the underlying observations.

Highlight these analytical gaps in Daubert motions. The conclusions reached by the expert must be grounded in valid scientific connections between the methodology and the facts of the case. Significant leaps of logic indicate unreliability.

Challenge Overstated Conclusions

Additionally, experts will frequently overstate conclusions that overstep what can be scientifically proven. For instance, an expert may examine the packaging of a product and conclude it is an outright forgery. But visual examination alone cannot prove forgery conclusively. The expert’s testimony exceeds the capabilities of the methodology.

Daubert motions can challenge where experts’ conclusions go too far beyond what the underlying techniques can support. The court should limit expert testimony to scientifically valid opinions.

Dispute the Relevance

Even scientifically valid expert testimony can be excluded under Daubert if it is not relevant to the issues in the case. For example, general testimony about the prevalence of counterfeiting in an industry may not be relevant to whether the specific product in the case is counterfeit. Ensure the expert testimony meaningfully ties to the disputed facts.

Retain Your Own Experts

Having counter-experts assess the methodology and conclusions can bolster Daubert challenges. Your experts can point out flaws overlooked by the opposition’s experts. They can also identify exaggerations and analytical gaps. Your experts’ testimony will strengthen motions to exclude junk science.

Use Precedent

Check for prior rulings on the admissibility of the forensic techniques under Daubert. If courts have previously excluded the methodology, cite those decisions in support. Prior exclusions indicate the technique falls short of scientific standards.

Also research if similar techniques have been successfully challenged under Daubert. Those rulings can provide templates for constructing your own motions even if not directly on point.

Emphasize Daubert’s Objectives

Daubert aims to prevent unreliable opinions masked as science from swaying fact-finders. The court serves as a gatekeeper against junk science that could improperly influence the outcome. Remind the court of this crucial role.

Further, highlight how admitting questionable expert testimony would undermine Daubert’s purpose of ensuring decisions are grounded in scientifically sound evidence. Exclusion is necessary to preserve Daubert’s objectives.

Attack the Expert’s Bias

Also consider scrutinizing potential bias issues with the expert witness. Experts retained solely for litigation often have an incentive to reach conclusions favoring the party that hired them. Pointing out financial bias or a pattern of consistently testifying for the same side can undermine credibility.

However, avoid attacks on character alone. The focus should stay on the validity of the methodology and principles used by the expert.

Request a Daubert Hearing

Ask for a special pretrial hearing to argue the Daubert issues. Daubert hearings allow you to challenge the expert’s testimony outside the presence of a jury. They also force judges to fully assess the methodology’s admissibility before trial.

Presenting affidavits from your own experts can demonstrate flaws in their techniques. You can also use depositions of the opposition’s experts to expose analytical gaps and overstated conclusions.

Craft Precise Relief Requests

In your motions, precisely identify the opinions and conclusions you want excluded, and request a definitive court order preventing those specific expert opinions from reaching the jury.

Narrow relief requests give the judge a clearer basis to rule in your favor. Broader exclusion requests may get denied even if certain opinions clearly reflect junk science.

Highlight the Prejudicial Impact

Emphasize that allowing unreliable expert testimony will unfairly prejudice your client. Juries tend to give significant weight to expert opinions labeled as “scientific evidence,” even if methodologically flawed.

Letting in junk science risks the jury deciding the case based on unsupported assertions rather than facts. Judges should exclude testimony where prejudicial impact outweighs any probative value.

Conclusion

Daubert challenges are vital for counterfeiting defendants facing unfounded accusations built on questionable science. Scrutinizing the expert’s methodology, conclusions, and potential bias provides a roadmap for keeping out unreliable testimony.

Succeeding on Daubert motions requires clearly demonstrating the flaws in the expert opinions and how allowing such testimony would prejudice the defense. But taking the time to develop robust Daubert challenges can pay dividends by preventing junk science from tainting the verdict.

[1] Frye, Daubert, and the Ongoing Crisis of “Junk Science” in Criminal Trials

[2] The Disappointing History of Science in the Courtroom: Frye, Daubert, and the Ongoing Crisis of “Junk Science” in Criminal Trials

[3] For Science in the Courts, the Daubert Name Looms Large

[4] Has the Supreme Court Endorsed the Use of Junk Science in the Administrative State?