EXPERT TESTIMONY; MOTION TO EXCLUDE; DAUBERT GATEKEEPING FUNCTION IS NOT A REPLACEMENT FOR THE ADVERSARY SYSTEM
In Ciavarra v. BMC Software, Inc., No. 4:07-CV-00413 (S.D.Tex. Feb. 7, 2008), the court denied the Defendants' motion to exclude the Plaintiff's expert witness testimony, holding that Daubert type gatekeeping was not intended to serve as a replacement for the adversary system, and that since the case would be a bench trial, the Defendants' could challenge the experts' opinions through cross examination. The Defendants had challenged the Plaintiff's damages expert on the ground that he made erroneous assumptions about the date that the Plaintiff would find new work and that such work would pay lower commissions, and on the ground that the expert had on limited knowledge about the online salary survey on which he based his estimates. The Plaintiff was also proffering an expert on liability to address whether the revenue recognition issue the Plaintiff had reported was material to the Defendants' finances. The Defendants challenged this opinion, relying on an SEC Staff Accounting Bulletin that indicated that materiality involves the impact of reported misrepresentations or unreported omissions. The court found that the nature of the Plaintiff's complaint was such that the SEC Bulletin did not render the expert's opinions inadmissible. Finally, the Defendants argued that this expert had failed to consider uncontroverted evidence and the DOL and SEC investigations. The court found that the evidence issue could be explored at trial, and that the court would be aware of the DOL and SEC investigations, but would evaluate the claim on a de novo basis.
