IMPROPER EXPERT OPINION (E)

FRE 702

When testimony requires some degree of skill or expertise in a certain area, the witness must first be tendered as an expert. A proffered expert must possess sufficient qualifications through knowledge, skill, training, or experience to assist the trier of fact to understand the evidence or to determine a fact at issue.

Examples

• “Dr. Smith, can you please describe the caliber of the bullet hole you observed?” (Dr. Smith was tendered as an expert heart surgeon, but not an expert in guns and/or ammunition)
• “Ms. Beckshire, what type of medical treatment is normally used in this scenario?” (Ms. Beckshire was tendered as an expert in hospital administrative procedures, but not an expert in medical procedures)
• “Mr. Morris, please tell the jury about standard safety designs for this type of aircraft.” (Mr. Morris was tendered as an expert in electrical engineering, generally, but not an expert specifically in aircraft safety design)

FRE 702. Testimony by Expert Witness

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Summary

The law permits the testimony of experts because experts can draw inferences that require special skill or expertise beyond that of lay jurors. A witness can be tendered as an expert based on the witness’s education, experience, or a combination of education and experience. Typically, an expert witness’s background will consist of a combination of both theoretical education and practical experience.

There is no discrete formula for determining whether an expert is qualified to offer opinion evidence in a certain field, just that under the totality of the circumstances, the expert witness can be said to be a qualified expert in the particular field. Courts have typically been liberal in their assessments of expert qualifications. However, the Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), that the trial judge must find the witness is competent to perform the specific “task at hand.” This language has caused courts in recent years to raise the standard for qualification as an expert. Among other elements, the foundation for an expert’s qualifications usually include the following:

• Degrees from educational institutions;
• Other specialized training in this field of expertise;
• Licensed to practice in the field;
• Practiced in the field for a number of years;
• Taught in the field;
• Published in the field;
• Belongs to professional organizations in the field; and
• Previously has testified as an expert on this subject.

See also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), holding that Daubert's “gatekeeping” function applies to all expert testimony under Rule 702 and that the trial court should make a “flexible” but diligent reliability inquiry in resolving the admissibility of such testimony. In making this determination, lower courts may look to the Daubert factors to the degree they are “reasonable measures of reliability,” but these factors do not represent a “definitive checklist.” This “flexibility” applies to both scientific and non-scientific experts.

Case Law (Improper Expert Opinion)

Qualified Experts:

• U.S. v. Galloway, 749 F.3d 238 (4th Cir. 2014) (agent qualified by experience as expert with respect to interpretation of coded language used in narcotics-related communications)
• U.S. v. Eiland, 738 F.3d 338 (D.C. Cir. 2013) (operations of narcotics dealers repeatedly have been found to be suitable topic for expert testimony because they are not within common knowledge of average juror)
• Bado-Santana v. Ford Motor Co., 482 F. Supp. 2d 192 (D.P.R. 2007) (although not a physician, neuropsychologist qualified to testify as expert on mild traumatic brain injury)
• Hadix v. Caruso, 461 F. Supp. 2d 574 (W.D. Mich. 2006) (by nature of practice and experience, primary care physicians qualified to offer opinions on psychiatric and psychological care)

Unqualified Experts:

• Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224 (5th Cir. 2007) (polymer scientist with no expertise in tire design, manufacture, or malfunction not permitted to testify on cause of tire failure)
• Botnick v. Zimmer, Inc., 484 F. Supp. 2d 715 (N.D. Ohio 2007) (witness did not qualify as expert in defective medical device case; general mechanical engineering was not particular to the science bearing on design or causation issues of alleged product defects)
• McMillan v. Weeks Marine, Inc., 478 F. Supp. 2d 651 (D. Del. 2007) (actuarial economist should not have testified about plaintiff’s future employment prospects; subject was outside his discipline and prior experience)
• Pfizer Inc. v. Teva Pharmaceuticals USA, Inc., 461 F. Supp. 2d 271 (D.N.J. 2006) (rheumatologist not qualified to testify in patent infringement case on subject of whether other doctors were influenced by advertising and promotion in deciding whether to prescribe drug)