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Vol. 70, No. 10,
October 1997
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 |