Tactics in Practice

Aramark, the company that employed St. Cyr, contended his infection was due to a lack of cleanliness at the hospital where he was treated. To prove its case Aramark called a public health doctor as an expert, who was prepared to testify that the hospital suffered from a high rate of infection.

However, Beckcom wasn't going to let the public health doctor go through without a challenge.

"It's not enough just to say, that this is a lousy hospital," Beckcom said. Under Daubert, the party calling the expert has to show, "that it's a breach of the standard of care if the hospital had an infection rate greater than, 'X'."

"And then you have to show it caused the injury," Beckcom said.

Cursory assertions that the higher rate of infection caused the plaintiff's injury didn't help the defense; its expert was disqualified.

Beckcom acknowledges that his Daubert challenges don't always work. He said that he makes a Daubert motion in about 50 percent of his cases, and is successful in about 10 to 15 percent of those challenges.

Then there are the lost challenges that don't turn out so badly. In the case of (Singleton v. Southpoint Consolidated LP) Beckcom's orthopedic surgeon testified that his client had to have back surgery because of a work injury. The defense presented a non-board certified physical therapist who disputed those findings. Beckcom made a Daubert challenge and lost.

"It turned out to be better for us because the jury hated the guy," Beckcom said. "Sometimes, if the experts are really poor, you are better off letting the jury reach conclusions of their own."

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