Getting a Grip on ExpertsAuthor(s): Ronald L. CarlsonSource: Litigation, Vol. 16, No. 4, Hard Cases · Tough Questions (Summer 1990), pp. 36-38, 59Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759419 .

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Getting a Grip on Experts

by Ronald L. Carlson

Something strange is going on with expert witnesses, and it needs to stop. Scenes like this are being played out in court? rooms nationwide: The plaintiff calls its expert, Dr. Fisher. Dr. Fisher, a physician, states his credentials and qualifica? tions. He then explains the foundation for his opinion. It consists of his own examination and treatment of the plain? tiff, and his pretrial review of the reports of other examining specialists. Next, Dr. Fisher states his opinion.

Then plaintiff's counsel magnanimously announces, "Your Honor, since Dr. Fisher relied on the reports of Dr. Lee and Dr. Richards in reaching his conclusions, plaintiff moves that the reports of those distinguished physicians be received into evidence." The court responds, "The exhibits will be received."

Dazzling and remarkable. Three experts for the price of one. Ever since the adoption of rules liberalizing expert testimony in federal and numerous state courts?Federal Rule of Evidence 703 is an example?such events have

repeated across the country. To those of us who study evi? dence, the number of courts that respond by admitting under?

lying expert reports is not just curious. It is startling and

disturbing. Appellate courts are just now addressing the problem.

They are answering a key question of modem expert witness

practice: When a courtroom expert relies upon the reports of others, does the expert's live testimony mean that those other

reports, prepared by nontestifying specialists, can come into evidence? Except for unusual cases, I believe the response should be a resounding no. Any other answer violates long? standing evidentiary doctrines such as the hearsay rule and, in criminal cases, the confrontation clause. Any other answer

gives expert testimony too great a role.

Stacking or backdoor admission of expert opinions is not the only problem. A related judicial filtering process should

Mr. Carlson is John Byrd Martin Professor of Law at the University of Georgia School of Law, Athens, Georgia.

be occurring, but has weakened with the liberalization of the rules on expert testimony. This second problem is inad?

equate review of the trustworthiness of the information on which the expert relies. The laxness is unfortunate. Courts must ensure that there is a reliable basis for expert testimony before an opinion is ever given. When an expert proposes to

expound courtroom conclusions that rely upon unadmitted

background data, a trial judge must first look critically at those data. If the foundation is shaky, this expert testimony should be refused, and not?as often happens today?be admitted "for whatever it's worth."

Alert Objections Are Important The duty to rule properly rests squarely with the trial court,

but the burden of calling attention to such problems falls

solely on lawyers. Judges can do what they should?barring wholesale introduction of the raw data underlying expert opinions and testing that data's trustworthiness?only if trial

lawyers make alert and incisive objections. Scientific testimony and expert witnesses have revolu?

tionized the American lawsuit. Evidence rules have become more receptive to such testimony, and the role of experts has

expanded at an ever increasing rate. There is now an industry devoted solely to providing forensic testimony for the trial bar. There are economists, experts on the value of human life, accidentologists, tire tread technicians, and more. Things have reached a point where courts need to safeguard the

judicial process from being overpowered by the avalanche of

expert opinion. Rule 703 of the Federal Rules of Evidence commendably

broadened the bases for expert opinions. Under it, experts testifying in court may offer opinions that are based upon information they typically use in their daily work. That is as it should be: Expert opinions assist the trier of fact. Fre?

quently, experts rely upon data that has not been formally offered and received into evidence. In many cases, such data would not be independently admissible; Rule 703 permits an

expert to rely on such material. However, even though un

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derlying information informs and influences the expert's opinion, only the opinion itself should come in; it can be cross examined. The underlying data, which cannot be cross-ex? amined and is, at best, hearsay, should stay out.

This difference is important, and it makes sense. Modern rules of evidence allow an expert to speak even though the foundation for his conclusions will not be in evidence at trial.

Despite this liberality, Rule 703 does not take the next step; it does not create a new hearsay exception for everything upon which a testifying expert relies.

A critical distinction exists between the right of the expert to provide an opinion based upon unadmitted?and perhaps inadmissible?documents, and the "right" of the direct ex? aminer to introduce, as an adjunct to the expert's courtroom

testimony, the full details of the unadmitted and otherwise unauthenticated materials. The first right exists; the second does not. When your adversary takes the second step without

laying a proper independent foundation?by producing the author of the hearsay report, for example, or the expert who

provided an underlying opinion?not only can you object, you should.

The cases are not as clear-cut as this advice suggests. Some courts blur the distinction between the testifying expert's conclusions and the report of a nontestifying expert upon which those conclusions are based. Some cases unfor?

tunately allow the latter material?the hearsay reports?into evidence. Exclusion is the better rule, and there is case law to

support it. See Rose Hall, Ltd. v. Chase Manhattan Overseas

Banking Corp., 576 F. Supp. 107, 158 (D. Del. 1983), affd, 740 F.2d 958 (3d Cir. 1984); Dept. of Corrections v. Wil? liams, 549 So. 2d 1071 (Ha. App. 1989); Dept. of Youth Services v. a Juvenile, 398 Mass. 516,499 N.E. 2d 812 (1986); Long v. State, 649 S.W.2d 363, 364 (Tex. App. 1983); State v. Towne, 142 Vt. 241,453 A.2d 1133 (1982). For additional authorities and views on both sides, see R. Carlson, Successful Techniques for Civil Trials, Section 4:20 (Supp. 1989); Imwinkelried, "The 'Bases' of Expert Testimony: The Syllo? gistic Structure of Scientific Testimony," 67 N.C.L. Rev. 1, 26(1988).

In thinking about this problem, remember that direct and cross-examiners have different rights. Cross-examiners can do a number of things that direct examiners cannot. Cross examiners may lead; direct examiners need an excuse to do so. When a witness on the stand refreshes his recollection from a supporting document, a direct examiner cannot intro? duce the document to show the jury what the witness used to

support his recollection. By contrast, Rule 612 gives the cross-examiner the right to do exactly that.

A similar difference exists for inquiries into the basis for an expert opinion. A cross-examiner should be able to inter?

rogate an expert witness about the details of unadmitted

supporting materials. The direct examiner should not. On direct, the expert may identify the sources for his opinion, but the background documents should not be recited in detail or verbatim unless they are separately authenticated. The vice in allowing more than a brief allusion to unauthenticated

underlying data on direct is particularly acute in the case of a

hearsay report about the merits of the case being tried. If mentioned in any detail, the underlying report will acquire a life of its own, with no justification.

A trial judge must be cautious in exposing the jury to such inadmissible information. A California decision, Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348, 369 (4th Dist. App. 1981), is a good example. In Grimshaw, the court decided several damages questions. Along the way, it considered whether an expert impermissibly had read to the jury reports prepared by others. Reviewing the record carefully, the court found that the expert had not been allowed to read the reports or documents, which the court described as "hearsay matters on which [the expert had] relied in forming his opinion." In

fact, the expert was not allowed to relate in specific detail their contents.

Limiting Instructions Don't Work This meant that the trial had been properly conducted, a

fact Grimshaw explicitly acknowledged. The appeals court said that an expert "may not under the guise of reasons [for his opinion] bring before the jury incompetent hearsay evi? dence." It then went one step further. Observing that many courts admit such hearsay evidence with the mere admoni? tion that it just "illustrates" the basis for the expert's opinion, Grimshaw suggests that such a limiting instruction is an

illusory remedy. A limiting instruction requires the jury to distinguish be?

tween the hearsay's value as foundation for the expert's opinion and the truth of the matters the hearsay asserts. But, if the testifying expert has recounted in great detail what another supposedly eminent specialist has said about a key issue in the case, it is asking a lot to expect the jury to understand or observe that fine line. See also Imwinkelried, 67 N.C.L. Rev. at 12; Carlson, "Collision Course in Expert Testimony: Limitations on Affirmative Introduction of Un?

derlying Data," 36 U. Fla, L. Rev. 234, 245 n.44. The better course is to stop the recitation of hearsay before it ever starts.

Here is how the problem can come up. You are defending an automobile manufacturer in an accident case involving a

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terrible fire. Your opponent's expert engineer begins his direct testimony.

Q. As an automobile design engineer, have you stud? ied the fuel systems on passenger cars?

A. Yes. I have studied such systems on hundreds of

foreign and domestic vehicles.

Q. Did you ever inspect a 1989 Marathon Marauder, Vehicle No. J98765434? A. Yes, at Rocky's Salvage Yard here in town. You asked me to do it.

Q. Is that the vehicle identification number of plaintiff's car?

A. Yes.

Q. Did you inspect the car at the salvage yard? A. I looked all over it, particularly the fuel system. Q. What did you determine about the fuel system? A. The filler pipe was separated from the fuel tank.

Q. Did you look at any other information in prepara? tion for your testimony here today?

A. Yes. I reviewed the report of United Laboratories, an independent testing institution, regarding tests they conducted on this very car, the plaintiff's Marathon.

Finally, I read the deposition of the plaintiff and heard her testimony here today. Q. Do experts such as yourself regularly rely on re?

ports such as you used from United Laboratories when

providing opinions in the auto design field? A. Yes, that is customary practice. Q. On the basis of your investigation, including the

report of United Laboratories, have you formed an

opinion about the cause of the fire described by the

plaintiff? A. Yes.

Q. Please give your opinion.

An expert can rely on inadmis? sible evidence, but such reliance does not magically

make the evidence admissible.

A. The cause of the fire was the improper placement of the fuel tank in the design and construction of this vehicle.

Then your opponent turns to the court. "Your Honor, as the witness relied upon a report from United Laboratories, we ask that the report he consulted be marked and received in evidence."

Now you must jump up. "Objection. No one from United Laboratories is here to testify. No one from that company is even listed as a witness. The report has not been separately authenticated. It cannot be received in evidence just because this expert relies on it. Maybe he can rely on it, but he cannot

sweep into evidence the report itself. It is hearsay at best, and inadmissible."

After a speech like that, your objection should be sus? tained. In fact, there should be applause and you should take a bow.

Current evidence codes provide ample support for exclu? sion of evidence like the United Laboratories report. How? ever, because courts go astray with dismaying frequency, future rule drafters should give specific attention to the

problem. One American Bar Association committee already has done so. It has suggested adoption of specific clarifica? tions, commenting that "this [suggested revision of Rule

703] holds the promise of restricting use of inadmissible

underlying data to its proper role, normally that of supporting an expert's opinion without becoming independent evidence. In particularly compelling circumstances and especially in civil cases, judges might admit reliable background docu? mentation where it comports with other rules of admission, including the catchall exception to the hearsay rule.... With careful rule revision, modern expert witness practice can move forward without unduly trampling upon established

hearsay doctrine or confrontation rights." Federal Rules of Evidence: A Fresh Review and Evaluation, 120 F.R.D. 299, 374(1988).

A Possible Revision I have offered a proposed revision myself. Currently, Rule

703 reads:

The facts or data in the particular case upon which an

expert bases an opinion or inference may be those

perceived by or made known to him at or before the

hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences

upon the subject, the facts or data need not be admis? sible in evidence.

I have suggested the addition of a second provision to that rule:

In criminal cases, and generally in civil cases, underly? ing expert data must be independently admissible in order to be received in evidence. An expert's reliance on unadmitted data does not mandate introduction of the data, where the sole reason for introduction is that it formed a basis for the expert's opinion. When good cause is shown in civil cases and the underlying infor? mation is particularly trustworthy, the court may admit the data under this rule to illustrate the basis for the

expert's opinion.

See Carlson, "Policing the Bases of Modern Expert Testi?

mony," 39 Vand. L. Rev. 577, 586 n.29 (1986). The last line of my proposal is not an invitation to trial courts

regularly to admit background data in civil cases. It is instead a strictly limited clause, to be invoked by trial judges spar? ingly and in compelling circumstances. Otherwise, the ex?

ception would swallow the revised rule, and continue the

problems the revision was meant to solve. Minnesota has recently embraced a policy prohibiting

wholesale introduction of underlying data on direct. Wisely, the new Minnesota rule does not restrict exploration of such data when it is probed during cross-examination. See Park, "Confining the Expert: Rule 703(b) of the Rules of Evi

(please turn to page 59)

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smartest career move in the world. I've

forgotten such words as "international" and "geopolitical" (which I'm not too familiar with in English), but I can still hail a taxi or find a restroom, which

might come in handy. Stan, let us know when we should

join you in California so that we can

begin doing whatever it is you do. In

anticipation of our move, we've all been

practicing trying to say we charge $1,000.00 an hour with a straight face, but so far, we haven't been able to do it. I suspect it'll be easier once we actually reach California, where I understand

they charge $500,000 for one-bedroom condos and everyone (even poor people) drives a Mercedes. Anyway, because

I'll be new to the area of international trade and geopolitical relations, I'm

thinking of only charging $500-$600 an hour to begin with. Will that be

enough to meet our overhead? I look forward to hearing from you

before you go away again for six weeks.

Sincerely,

Becky N. Klemt

P.S.: Incidentally, we have advised our client of your hourly rate. She is willing to pay you $1,000.00 per hour to collect this judgment provided it doesn't take

you more than four seconds. 10

Getting a Grip

(continued from page 38) dence." Minnesota Bench & Bar (March 1990). Barring the introduction of underly?

ing hearsay would not, however, end all the problems currently associated with expert testimony. Even when it is not admitted or described in detail, the stuff on which experts base their opin? ions can be flimsy. It might be a flawed

survey. It might be a renegade study that reaches a conclusion contrary to 30 others that have looked at the same topic.

Or it might turn out to be sheer supposi? tion.

Some may think that any such flaws can be revealed by cross-examination; they say that is remedy enough. That attitude ignores the impact a profes? sional expert?with a winning smile, a

plausible style, and a well-modulated voice?can have on a jury. As impor? tant, if an expert's opinion, no matter how flawed the underlying data, is ad? mitted as evidence on a key element of a party's case, a verdict against the op?

ponent may be almost invulnerable on

appeal. The solution is for the trial judge,

before testimony, to assess the trust? worthiness of what the expert relied on. If that foundation is suspect, the expert's testimony should be barred.

Case authority is split, but much of it

supports the right of a party to demand a pretestimony judicial inquiry into the trustworthiness of the underlying data. See In re "Agent Orange' Prod. Li?

ability Litigation, 611 F.Supp. 1223, 1245 (E.D. N.Y. 1985) (Weinstein, J.), aff'd, 818 F.2d 187 (3d Cir. 1988) (re? quiring that hearsay underlying the

expert's opinion satisfy "minimum standards of reliability"). See also

Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C. Cir. 1988); Ricciardi v. Children s Hospital Medical Center, 811 F.2d 18 (1st Cir. 1987).

The Richardson case is a good ex?

ample of how courts sometimes police expert testimony. That case was a tort suit concerning the drug Bendectin. The claim was that the plaintiff's birth de? fects had been caused by the drug. There was no question that the plaintiff's mother had taken the drug while preg? nant. There was also no question that the plaintiff was bom with grievous birth defects.

The difficulty was causation. Had Bendectin caused the plaintiff's prob? lems? More than 20 epidemiological studies had failed to detect a statistically significant relationship between Bendectin and birth defects. Still, the

plaintiffs had an expert who said there was a causal link. Though the expert recalculated previous studies, he had never published his findings or offered them for peer review. Some foundation

points for his opinion?which included reliance on animal studies, as well as theories about chemical structure?were

deemed to be of "scant utility." The

expert disagreed with many prior stud? ies, yet he was permitted to testify. In the end, the jury returned a verdict in excess of $1 million for the plaintiffs. But the district judge entered a judgment N.O.V.

The District of Columbia Circuit af? firmed. It concluded that the expert's testimony lacked a satisfactory basis.

Absent that testimony, there would have been no proof of the essential element of causation, and so the district court was found justified in reversing the

jury's verdict.

A similar approach has been taken when a trial court is confronted with an

expert's affidavit in summary judgment. As one observer commented: "The hard

edged attitudes that the courts display toward the expert affidavit are encour?

aging. Influential judges such as Judge J. Skelly Wright and Judge Jack

Weinstein rejected expert affidavits in their respective Merit Motors [Merit

Motors v. Chrysler Corp., 569 F.2d 666 (D.C. Cir. 1977)] and Agent Orange opinions. Each opinion exhibited a de? sirable . . . [inclination] to evaluate the

expert input for overall reliability and trustworthiness." Brunet, "The Use and

Misuse of Expert Testimony in Sum?

mary Judgment," 22 U.C. Davis L. Rev. 93, 136(1988).

Through such "hard-edged attitudes" the courts must control runaway expert testimony. As the Fifth Circuit recently said, "It is time to take hold of expert testimony in federal trials." In re Air Crash Disaster at New Orleans, 795 F.2d 1230,1234 (5th Cir. 1986). A good place to start is with vigorous resis? tance to improper introduction of evi? dence under Rule 703. The framers of the Rules of Evidence, understanding that properly controlled expert testi?

mony can have great value, welcomed

the admission of technical opinions. Admitting those opinions, however, is a far cry from letting in everything on which the expert relied?or letting the

expert rely on next to nothing at all.

Imprecations to judges are useless, however, unless lawyers act first; attor?

neys must object and fight vigorously. Remember two things: Just because the

expert relied upon something does not make it admissible; and just because an

expert has an opinion does not mean the

opinion has any substantial basis. V

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