2022 by the Numbers
We are pleased to present the 2022 Daubert Study, continuing our annual analysis of Daubert challenges to financial experts. In the 22 years since the U.S. Supreme Court’s 1999 ruling in Kumho Tire Co. v. Carmichael, we have analyzed 3,342 financial expert challenges, including 272 financial expert challenges decided during calendar year 2021.
2022 Trends
Which financial experts experience higher exclusion rates?
Accountants and economists continue to be the most frequently challenged financial expert witnesses. With the exception of 2021, accountant exclusion rates have continually declined since 2016 (62% to 32%, with a low in 2020 of 29%), even with an increasing number of Daubert challenges. In 2021, economist exclusion rates decreased significantly from the 21 year average of 43% and 2020 rate of 40% down to 27%. Challenges to appraisers/valuation experts increased nearly 10% in 2021 compared to the 21 year average; however, exclusions remained in line with the historical rate at 38%.
Why are financial experts being excluded?
Lack of reliability, either on its own or in combination with other factors, continues to be the primary reason financial expert witnesses are excluded. The reasons for exclusions due to reliability consistently over the 21 year study have been due to the lack of sufficient facts/data or the use of methods that are not generally accepted.
Where are financial expert exclusion rates highest?
In 2021, Daubert challenges to financial experts most frequently occurred in the Fifth and Ninth Circuits. However, the highest exclusion rates in 2021 occurred in the First Circuit and State Courts at 100% and 67%, respectively. Over the 22 years of our study, the Tenth, Second, and Fourth Circuits have, on average, had the highest exclusion rates.
“PwC's study continues to show that Daubert challenges against financial experts are consistently being made and upheld by the courts. Even if unsuccessful, Daubert challenges may reveal vulnerabilities within a case and create doubt around the validity of an expert's opinion. Understanding the Daubert criterion and knowing the reasons why financial experts are being excluded can assist financial experts in avoiding Daubert challenges.”
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