The Use and Abuse of Expert Witnesses
Evidentiary rules and recent cases give
little help in identifying what kind of evidence a jury must be able to
understand without expert testimony. Thus, a modern comparative
framework is needed to set forth practical guidelines governing
admissibility of expert testimony.
By Patrick W. Brennan
Misleading expert testimony has been called "a plague in contemporary
litigation." 1 Both plaintiff and defense
attorneys have succumbed to the belief that experts are needed to
explain the most mundane type of case. Even in cases legitimately
calling for expert testimony, witnesses have testified beyond what is
permissible by federal and state evidence rules.
Expert testimony must bear a genuine connection to actual
expertise in dealing with the real facts of record.
Experts are essential in matters that require scientific or technical
knowledge, but evidence rules do not allow expert testimony if the
subject is understandable by the average person. When is an issue one
that the jury can decide on its own? The answer is vital because it is
the key for limiting expert testimony.
While the federal trial courts' gatekeeping function in admitting or
denying expert testimony was enhanced by the U.S. Supreme Court's 1993
Daubert v. Merrell Dow Pharm. decision, 2 Daubert gives little help in
identifying what kind of evidence the jury must be able to understand
without expert testimony. Wisconsin appellate courts, despite concern
over "evidentiary pitfalls and ... undue reliance on expert witnesses,"
remain committed to a standard that allows a more limited and indirect
gatekeeping role. 3 Federal Rule of Evidence
702 and Chapter 907 of the Wisconsin Statutes generally control
resolving these issues, but a modern comparative framework is needed to
set forth practical guidelines governing admissibility of expert
testimony.
Experts may not testify about what the law is or should be
A common issue in many cases is how statutes, codes or regulations
apply to the facts. In Uebele v. Oehmsen Plastic Greenhouse
Manufacturing, which involved a defective greenhouse, the court
ruled that the expert could not testify that a certain code did not
apply. 4 Similarly, the supreme court has
held that it was error to allow expert testimony about a zoning
ordinance because an expert cannot testify about what the law is on the
facts in evidence. 5 In addition, federal
appellate courts have repeatedly warned trial judges to disallow any
testimony that usurps the court's role to determine the law. 6
A variety of Wisconsin cases, however, has allowed expert testimony
to explain the meaning and practical application of applicable laws or
rules. 7 Since there is no way to reconcile
these decisions, the better practice is to let the trial court decide
legal issues.
Experts may not testify about ultimate facts
It is not proper to elicit testimony from an expert that calls for a
pronouncement on such issues as due care, causation or responsibility.
8 Objections rest not on the witness's
qualifications, but on the ability of any witness to in effect argue to
the jury or advocate a position. The trial judge will deem such
testimony as"not helpful" to the jury and therefore excludable.
Experts also have been barred
from testifying about contract interpretation, such as how one should
have answered specific questions on an insurance application or what
legal significance attaches to the signing of various papers - to do so
would involve interpreting other testimony. 9 Expert testimony cannot be received in these
circumstances, even if the expert knows more about the subject than
anyone else.
One type of expert testimony that is subject to abuse is that offered
by accident reconstruction witnesses, some of whom merely read
depositions and give opinions about ultimate issues. Litigants often
place great emphasis on the opinions and discovery of these experts, as
if they have something more to say than the occurrence witness who can
testify about facts. Frequently, testimony from accident reconstruction
witnesses can be stricken on the basis it is superfluous or on a subject
not suitable for expert opinion. 10
In Rosado v. Deters, an expert was barred because he could
not independently establish the necessary physical and mathematical
basis for his opinion that one vehicle caused the accident. 11 Similarly, in Roback v. V.I.P.
Transport, an expert's testimony was barred because his opinion had
to depend upon how long the defendant's eyes were likely diverted from
the road 12 - an unprovable predicate.
Other courts have limited expert testimony when the jury can reach
its own conclusions, as when sufficient eyewitnesses are available. 13 Although the rules in these cases seem
contrary to section 907.04, which allows testimony about ultimate facts,
it is essential to understand just what ultimate fact is at issue. If a
question in effect elicits an opinion about how the verdict should read,
the question is improper; both questioner and witness must be careful to
steer clear of expounding on facts that are covered in the jury
instructions. 14 Mere conclusions not based
upon evidentiary facts are insufficient even if made by a qualified
expert. 15 In practice, however, phrasing
the question just right can be difficult, leaving a crucial role to the
trial court to discern whether the inquiry goes beyond permissible
boundaries. 16
Experts must not testify about credibility
Nobody - not even a psychologist with impeccable qualifications - may
testify in court about the veracity of a particular witness. 17 For example, a clinical psychologist's
testimony that a motorist had antisocial behavior disorder was excluded
in Bastow v. General Motors Corp.18
Even if counsel strenuously argues that the expert is not supporting
the witness's credibility, the court should look beyond this posturing.
When a psychologist attempted to testify in an abuse case about the
credibility of children, the testimony was disallowed because it served
to "improperly buttress" the child's credibility. 19 A doctor in Wescott v. Crinklaw
described how persons suffering from post-traumatic stress syndrome
often make inaccurate, misleading and incomplete statements. The court
held such testimony should be excluded as it was not necessary to assist
the jury; the testimony was nothing but a "thinly veiled way of stating
that the [plaintiff] was telling the truth." 20
An historically recognized exception to the rule prohibiting
testimony about witnesses credibility is a physician's ability to
testify about a patient's symptoms. 21 In
State v. Jensen a properly qualified expert was permitted to
testify that the subject's behavior was consistent or inconsistent with
objectively verifiable phenomenon, 22 but
expert testimony about the "psychological profile" of a sex offender
also has been admitted. 23 It is difficult
to discern a principled difference between these decisions.
Experts should be qualified on the precise issue involved
Numerous courts have scrutinized an expert's qualifications to ensure
a match with the issue about which the expert seeks to testify. In
O'Connor v. Commonwealth Edison the court noticed that the
treating physician's claims of medical causation were not supported by
the authors of medical texts upon which he relied, nor by any personal
study or experiments, nor any other apparent scientific basis. 24 Therefore the Seventh Circuit disallowed
the physician's testimony. The Seventh Circuit is strict in requiring
that experts "adhere to the same standards of intellectual rigor that
are demanded in their professional work," 25 a standard that presupposes the expert
actually works in the field in which he or she testifies.
One preliminary line of inquiry
is simply to ask the witness what expertise he or she brings to the
case. If the witness cannot answer the question without constant
reference to catch phrases about generalized study or experience, the
witness probably has nothing more to offer than what is understandable
in the jury's collective wisdom.
And why should such a witness be allowed? Had the witness been honest
the testimony would have been prevented by Boehck Construction
Equip. Corp. v. O'Brien, in which an "expert" admitted he was not
expert; his testimony was not allowed. 26The rules from these cases are a variant of
others that illustrate an important theme: Expert testimony must bear a
genuine connection to actual expertise in dealing with the real facts of
record.
Experts' opinions must be based upon the record and supported by
data and reasons
An expert's opinion must be grounded on foundational facts. A verdict
cannot stand on expert opinion that in turn was based upon unestablished
assumptions.27 Courts are especially
careful in scrutinizing expert testimony in damages cases that involve
figures and amounts that carry a delusive impression of exactness. 28 Similar dangers exist when earnings are
projected in wrongful death cases. A proper foundation must be laid to
establish probable future work opportunities. 29
Two Wisconsin cases, Glassey v. Continental Insurance and
Patterman v. Patterman, portray the outer boundaries of what
facts an expert might supply in a case. If the court determines that no
one has or can supply a necessary, causal variable then even the expert
testimony is not allowed. 30Both decisions
can be read as a more skeptical view of when testimony that is
unsupported by facts may be received. An expert opinion based upon
speculation or conjecture must be stricken; and the testimony is not
admissible if the court concludes that an opinion grounded upon certain
facts simply cannot be grounded upon those facts. 31 The difficulty with admissibility may be
due either to missing factual data that any lay witness could supply or
the inability of any expert to answer an esoteric, difficult issue.
Federal courts are notably suspect of experts who fill in the facts,
especially when doing so departs from standards recognized in the
expert's professional field. The trial court's check on an expert going
too far was referred to in Frymire-Brinati v. KPMG Peat Marwick
as a "preliminary assessment." 32 The
Seventh Circuit in Wilson v. City of Chicago barred a
pathologist from testifying about the physiology of torture based upon
no showing of genuine knowledge. A Wisconsin court also barred expert
testimony due to lack of genuine knowledge in Wojciuk v. U.S. Rubber
Co., a case involving the design and manufacture of tires. 33 If the variables are too many for reasoned,
probable expert testimony then the testimony should be barred.
Expert testimony may be unnecessary
A recent case arose out of
summary judgment granted to an elevator manufacturer that was sued by a
man who was injured at a hospital when he received an electric shock
upon pressing the call button. 34 In
Krueger v. Otis Elevator the court noted that plaintiff's
burden in such a case may be satisfied by a layperson's common knowledge
or by expert testimony, since it is only necessary to have expert
testimony "where the question of negligence rests on facts or principles
that are extremely difficult to comprehend, as where the event or
instrumentality is complex or involves sophisticated knowledge."
Two other cases also are instructive on courts' tendency to pull away
from the need for expert witnesses. 35 Both
courts in Weiss v. United Fire & Casualty and DeChant
v. Monarch Life Insurance determined that expert testimony was not
required in a bad faith case. Similarly, courts have determined that
experts have nothing much to say about a simple slip and fall case,
snowplowing procedures or how a bull should be restrained. 36 In Nolop v. Skemp a civil engineer
also was not allowed to interpret highway photographs when the jury
could do so just as easily. 37 In fact, any
matter that is within the sensory perception of an ordinary person does
not need expert testimony, 38 and the
courts should proactively use this reasoning to bar experts outright
more often.
Even those cases commonly thought of as needing expert testimony may
not after all. For example, experts are needed to prove a seat-belt
defense, but not in a case of simple ejection such as in Wingad v.
John Deere & Co. 39 A professional
negligence case - depending upon the issue involved - also may not
necessarily need expert testimony, so said the court in Jaeger v.
Henningson, Durham & Richardson. 40 In addition, depending upon the character
of the injury, pain and suffering may not depend upon expert support.41
Some courts, such as the Tenth Circuit in Compton v. Subaru of
America, state that the more stringent Daubert rule does not apply
if the subject of expert testimony is mundane or not based upon a branch
of hard science. 42 Other decisions have
applied the new standard to the social sciences, civil rights cases and
the broad gamut of issues commonly encountered in products liability
cases. 43 One observer recently said:
"The most valuable approach to expert testimony, however, is for the
trial judge to greet with skepticism any claim that social science can
tell a jury much about why something happened. Very little such
testimony tells the jury much that it does not know from common
experience."44
That observer's view has moorings in long-standing Wisconsin law:
When the jury is able to draw its own conclusions the admission of
expert opinion is "not only unnecessary but improper." 45
Expert witnesses - as opposed to fact witnesses - should not be
thought of as essential or important witnesses in many instances.
Occurrence experts, those with expertise and familiarity with the
occurrence, often are more persuasive witnesses than are expert
witnesses. 46 Testimony from these and
other fact witnesses, from the nurse in the emergency room to the
company accountant or foreperson at the job site, can be quite
compelling at trial.
Conclusion
The admissibility of expert testimony can be challenged by motion
practice, offers of proof or by voir dire of the witness. Under either
the federal Daubert standard or the Wisconsin relevancy rule,
the foundation and scope of proper expert testimony can be better
examined after understanding the proper limitations on expert
testimony.
Patrick W. Brennan, Marquette 1981, is a
shareholder in the firm of Crivello, Carlson, Mentkowski & Steeves
S.C., Milwaukee.
Endnotes
1 Midstate Fertilizer Co. v.
Exch. Nat'l Bank of Chicago, 877 F.2d 1333, 1339-40 (7th Cir.
1989).
2 Daubert v. Merrell Dow
Pharm., 113 S. Ct. 2786 (1993); Blinka, Scientific Evidence in
Wisconsin After Daubert, 66 Wis. Law. 10 (Nov. 1993); Sorenson
v. Shaklee Corp., 31 F.3d 638, 647 (8th Cir. 1994); Reideinger,
They Blinded Me With Science!, ABA J. 28 (Sept. 1996).
3 State v. Walstad, 119
Wis. 2d 483, 519 n. 13, 351 N.W.2d 469 (1984); State v. Peters,
192 Wis. 2d 674, 688, 534 N.W.2d 867 (Ct. App. 1995).
4Uebele v. Oehmsen Plastic
Greenhouse Mfg. Inc., 125 Wis. 2d 431, 436, 373 N.W.2d 456, 459
(1985).
5 State ex rel. Morehouse v.
Hunt, 235 Wis. 358, 366 (1940); Meyer v. Fidelity Sav.,
944 F.2d 562, 577 (9th Cir. 1991); and Crow Tribe of Indians v.
Racicot, 87 F.3d 1039, 1045 (9th Cir. 1996).
6 Meyer v. Fidelity Sav.,
944 F.2d 562, 577 (9th Cir. 1991).
7 James v. Heintz, 165
Wis. 2d 572, 578-79, 478 N.W.2d 31 (Ct. App. 1991) (whether federal
truck lighting regulations applied); State v. Eichman, 155 Wis.
2d 552, 568-69, 456 N.W.2d 143 (1990) (practical application of criminal
statutes on sexual exploitation by therapist). Also see Note,
Expert Legal Testimony, 97 Harv. L. Rev. 797 (Jan. 1984).
8 Anthuber v. Integrity Mut.
Ins. Co., No. 95-1397, filed 4/16/96 (unpublished); Lievrow v.
Roth, 157 Wis. 2d 332, 352, 459 N.W.2d 850, 857 (Ct. App. 1990);
Kostelecky v. NL ACME Tool, 837 F.2d 828, 830-31 (8th Cir.
1988); Minasian v. Standard Chartered Bank PLC, 109 F.3d 1212,
1216 (7th Cir. 1997).
9 Kreklow v. Miller, 37
Wis. 2d 12, 22, 154 N.W.2d 243 (1967); Loeb v. Hammond, 407
F.2d 779, 781 (7th Cir. 1969); United States v. Weitzenhoff, 35
F.3d 1275 (9th Cir. 1994); and Yannacopoulous v. General Dynamics
Corp., 75 F.3d 1298 (8th Cir. 1996), in which the ultimate opinion
of a lawyer that a contract had existed was barred, although other
evidence about negotiations was allowed; CMI-Trading Inc. v. Quantum
Air Inc., 98 F.3d 887, 890 (6th Cir. 1996).
10 State v. Peters, at
689; CMI-Trading Inc. v. Quantum Air Inc., 98 F.3d 887, 890
(6th Cir. 1996).
11 Rosado v. Deters, 5
F.3d 119, 124 (5th Cir. 1993).
12 Roback v. V.I.P.
Transport, 90 F.3d 1207, 1215 (7th Cir. 1996).
13 Valiga v. Nat'l Food
Co., 58 Wis. 2d 232, 251, 206 N.W.2d 377 (1973); Watkins v.
Schmitt, 665 N.E.2d 1395 (Ill. 1996); United States v.
Rincon, 28 F.3d 921 (9th Cir. 1994); State v. Wilson, 179
Wis. 2d 660, 678, 508 N.W.2d 44 (Ct. App. 1993).
14 Owen v. Kerr-McGee
Corp., 698 F.2d 236, 240 (5th Cir. 1983); Lievrow v. Roth,
157 Wis. 2d 332, 351-52, 459 N.W.2d 850 (Ct. App. 1990); Casson v.
Schoenfeld, 166 Wis. 401, 166 N.W. 23 (1918); Berry v. City of
Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994).
15 Snider v. Northern States
Power Co., 81 Wis. 2d 224, 231, 260 N.W.2d 260 (1977); Dean
Medical Center S.C. v. Frye, 149 Wis. 2d 727, 439 N.W.2d 633 (Ct.
App. 1989); Mueller v. Luther, 31 Wis. 2d 220, 142 N.W.2d 848
(1968).
16 Wigmore on Evidence, §12,
p. 49, n.15 (4th Ed. 1992).
17 State v. Jensen, 147
Wis. 2d 240, 249, 250, 432 N.W.2d 913 (1988); State v.
Hazeltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984);
State v. Bednarz, 179 Wis. 2d 460, 507 N.W.2d 168 (Ct. App.
1993); State v. Pittman, 174 Wis. 2d 255, 267, 270, 496 N.W.2d
74 (1993).
18 Bastow v. General Motors
Corp., 844 F.2d 506 (8th Cir. 1988). Also see State v.
Blair, 164 Wis. 2d 64, 74, 473 N.W.2d 566 (Ct. App. 1991), which
upheld the barring of an expert on memory and eyewitnesses.
19 United States v.
Binder, 769 F.2d 595, 602 (9th Cir. 1985).
20 See Wescott v.
Crinklaw, 68 F.3d 1073, 1077 n.2 (8th Cir. 1995).
21 Quaife v. Chicago &
N.W. R.R. Co., 48 Wis. 513, 4 N.W. 658 (1880).
22 Compare State v.
Jensen, 147 Wis. 2d 240, 256, 432 N.W.2d 913 (1988), with Gier
By and Through Gier v. Educ. Serv. Unit, 66 F.3d 940, 943 (8th Cir.
1995).
23 State v. Friedrich,
135 Wis. 2d 1, 16, 398 N.W.2d 763 (1987); State v. Richardson,
189 Wis. 2d 418, 426-31, 525 N.W.2d 378 (Ct. App. 1994); State v.
DeSantis, 155 Wis. 2d 774, 794, 456 N.W.2d 600 (1990).
24 O'Connor v. Commonwealth
Edison Co., 13 F.3d 1090 (7th Cir. 1994).
25 Braun v. Lorillard,
84 F.3d 230, 234 (7th Cir. 1996); Tyus v. Urban Search
Management, 102 F.3d 256, 263 (7th Cir. 1996); Black v. Gen'l
Elec. Co., 89 Wis. 2d 195, 212, 278 N.W.2d 224 (Ct. App. 1979).
26 Boehck Constr. Equip.
Corp. v. O'Brien, 29 Wis. 2d 649, 653 (1965).
27 Kenosha Liquor Co. v.
Heublin Inc., 895 F.2d 418, 420 (7th Cir. 1990); Bituminous
Cas. Corp. v. United Military Supply Inc., 69 Wis. 2d 426, 433, 230
N.W.2d 764 (1975); Peil v. Kohnke, 50 Wis. 2d 168, 175, 184
N.W.2d 433 (1971); Hicks v. New York Fire Ins. Co., 266 Wis.
186, 189, 63 N.W.2d 59 (1954); Schulz v. St. Mary's Hosp., 81
Wis. 2d 638, 260 N.W.2d 783 (1978); United States v. City of Miami,
Fla., 115 F.3d 870, 873 (11th Cir. 1997).
28 Tyger Constr. Co. Inc. v.
Pensacola Constr. Co., 29 F.3d 137 (4th Cir. 1994).
29 Joy v. Bell
Helicopter, 999 F.2d 549, 569 (D.C. Cir. 1993); In re Air Crash
Disaster at New Orleans, La., 795 F.2d 1230, 1235 (5th Cir.
1986).
30 Glassey v. Continental
Ins. Co., 176 Wis. 2d 587, 608-9, 500 N.W.2d 295 (1993);
Patterman v. Patterman, 173 Wis. 2d 143, 196 N.W.2d 613 (Ct.
App. 1992).
31 Fedorczyk v. Carribbean
Cruise Lines Ltd., 82 F.3d 69, 75 (3d Cir. 1996) (fall in a
bathtub); McGarrity, 104 Wis. 2d 414; Watkins v. Toro
Co., ___ S.W.2d ___ (1995)(Automatic shutoff of lawnmower; timing
not in evidence) ; Peterson v. Peterson, 126 Wis. 2d 264, 266,
376 N.W.2d 88 (Ct. App. 1985), an expert's opinion that conflicts with a
court's order regarding legally relevant factors will be barred,
City of Miami.
32 Frymire-Brinati v. KPMG
Peat Marwick, 2 F.3d 183, 187 (7th Cir. 1993).
33 Wilson v. City of
Chicago, 6 F.3d 1233, 1238-39 (7th Cir. 1993); Viterbo v. Dow
Chem. Co., 646 F. Supp. 1420 (E.D. Tex. 1986), aff'd 826 F.2d 420
(5th Cir. 1986); Wojciuk v. U.S. Rubber Co., 19 Wis. 2d 224,
122 N.W.2d 737 (1963). Some cases, however, have simply gone too far:
Diviero v. Uniroyal Goodrich Tire Co., 114 F.3d 851 (9th Cir.
1997); Merrell Dow Pharm. Inc. v. Havner, ___ S.W.2d ___ (Tex.
1997)(several experts rejected regarding morning sickness drug).
34 Krueger v. Otis
Elevator, no. 95-0253, filed 12/12/95 (unpublished).
35 Weiss v. United Fire &
Cas. Co., 197 Wis. 2d 365, 541 N.W.2d 753; DeChant v. Monarch
Life Ins. Co., 204 Wis. 2d 137, 554 N.W.2d 225 (Ct. App. 1996).
36 Getter v. Wal-Mart Stores
Inc., 66 F.3d 1119 (10th Cir. 1995) (slip and fall); Jacobson
v. Greyhound Corp., 29 Wis. 2d 55, 63, 138 N.W.2d 133
(1965)(snowplowing); White v. Leeder, 149 Wis. 2d 948, 960, 440
N.W.2d 557 (1989)(restraining bulls).
37 Nolop v. Skemp, 7
Wis. 2d 462, 465, 96 N.W.2d 826 (1959).
38 Annotation: "Nonexpert Opinion
- Sensory Perception," 10 A.L.R.3d 258. See United States v.
DeLuna, 763 F.2d 897 (8th Cir. 1985) (expert on analysis of
"conversational power"); El-Meswari v. Washington Gas & Light
Co., 785 F.2d 483 (4th Cir. 1986) (mother's emotional reaction upon
death of child); State v. Blair, 164 Wis. 2d 64, 74, 473 N.W.2d
566 (Ct. App. 1991).
39 Wingad v. John Deere &
Co., 187 Wis. 2d 441, 456, 523 N.W.2d 274 (Ct. App. 1994).
40 Jaeger v. Henningson,
Durham & Richardson Inc., 714 F.2d 773 (8th Cir. 1983)
(architectural site inspection); but see Pierce v. Colwell, 209
Wis. 2d 355, 362, ___ N.W.2d ___ (Ct. App. 1997).
41 Annotation: "Expert Testimony
- Future Pain," 20 A.L.R. 5th 1; Vultaggio v. Gen'l Motors
Corp., 145 Wis. 2d 874, 882, 429 N.W.2d 93 (Ct. App. 1988);
Crouse v. C & NW R.R. Co., 104 Wis. 473, 484, 80 N.W. 752
(1899); Miller v. Massachusetts Mut'l Life Ins. Co., No.
96-0472 (filed 10/8/96).
42 Compton v. Subaru of
America Inc., 82 F.3d 1513 (10th Cir. 1996), cert. den. 117 S. Ct.
611 (1997); United States v. Starzecpyzel, 880 F. Supp. 1027
(S.D.N.Y. 1995); McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d
Cir. 1995).
43 See Berry v. City of
Detroit, 25 F.3d 1342 (6th Cir. 1994); Khan v. State Oil
Co., 93 F.3d 1358, 1365 (7th Cir. 1996); Tyus v. Urban Search
Management, 102 F.3d 256, 263 (7th Cir. 1996); Cummins v. Lyle
Indus., 93 F.3d 362 (7th Cir. 1996); People Who Care v.
Rockford Bd. of Educ., 111 F.3d 528, 534 (7th Cir. 1997).
44 Wilson, Moral
Judgment, at 107, 108 (Basic Books, 1997).
45 Kraemer v. Theda Clark
Mem'l Hosp., 45 Wis. 2d 147, 151, 172 N.W.2d 427 (1969); Valiga
v. Nat'l Food Co., 58 Wis. 2d 232, 206 N.W.2d 377 (1973).
46 Samuel R. Gross, Expert
Evidence, 1991 Wis. L. Rev. 1113, 1127
Wisconsin
Lawyer