§702 Testimony by Experts

LibraryEvidence Restated Deskbook (2021 Ed.)

§702 Testimony by Experts

1. Section 490.065.1, RSMo Supp. 2019, Cases: In all actions in which there is no right to a jury trial and in actions brought under Chapters 451–455, RSMo (Domestic Relations), or actions adjudicated in juvenile courts under Chapter 211, RSMo, or in family courts under Chapter 487, RSMo, or in all proceedings before the probate division of the circuit court:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
2. Section 490.065.2 Cases: In all other actions:
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

Notes

1. Section 490.065.1 Cases: All actions in which there is no right to a jury trial and actions brought under Chapters 451–455 (Domestic Relations), Chapter 211, Chapter 487, or proceedings before the probate division of the circuit court

Section 490.065, which sets forth the standards for the admission of expert testimony, was repealed and reenacted effective August 28, 2017, to add one new section. Subsection 1 of the statute provides the same standard as existed in repealed § 490.065, which set forth the standard for the admission of expert testimony in civil actions and administrative proceedings, That standard is now limited to:

· all actions or proceedings in which there is no right to a jury trial;

· actions brought under Chapters 451–455, RSMo (Domestic Relations);

· actions adjudicated in juvenile courts under Chapter 211;

· actions adjudicated in family courts under Chapter 487; and

· all proceedings before the probate division of the circuit court.

Section 490.065.1 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Inasmuch as the standard is the same for the cases it is now limited to, former caselaw applying the standard to the limited cases should be applicable. Accordingly, expert testimony is not admissible in such cases if the statutory foundation requirements are not met. Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 173 (Mo. App. W.D. 2006); McGuire v. Seltsam, 138 S.W.3d 718, 720 (Mo. banc 2004).

A decision regarding whether expert opinion testimony satisfies the requirements of the statute is a matter of trial court discretion, McGuire, 138 S.W.3d at 721, and its discretion is broad in deciding the matter, Screibman v. Zanetti, 909 S.W.2d 692, 697 (Mo. App. W.D. 1995). Its decision will not be disturbed on appeal unless there is a clear abuse of discretion. Hord v. Morgan, 769 S.W.2d 443, 447–48 (Mo. App. W.D. 1989); State ex rel. State Highway Comm'n v. Cone, 338 S.W.2d 22, 27 (Mo. 1960); Hill v. City of St. Louis, 371 S.W.3d 66, 74 (Mo. App. E.D. 2012) (the trial court did not abuse its discretion in determining that the symbolism of the noose to African Americans was not such a matter of common knowledge that it would invade the province of the jury to allow expert testimony by an historian about the historical significance and symbolism of the noose to African Americans as a symbol of racial oppression). But the de novo appellate review standard applies to the determination of whether testimony constitutes expert testimony and whether that expert testimony should be admitted because an interpretation of a statute is reviewed de novo. The abuse of discretion review standard applies to factors pertaining to how that evidence relates to the trial as a whole, such as whether it is legally relevant or cumulative. See §104, Questions of law are reviewed de novo, of this deskbook.

Although "[g]enerally, expert testimony on issues of law is inadmissible because [it] 'encroaches upon the duty of the court to instruct on the law,' . . . expert testimony on complex procedural matters, industry standards, and highly technical statutes and regulations is permissible to allow the jury to evaluate the conduct of the parties." Hill, 371 S.W.3d at 77 (citation omitted) (the trial court properly allowed a human resources consultant and attorney to provide expert testimony about Equal Employment Opportunity Commission enforcement guidance and generally accepted human resources practices in support of a hostile work environment claim—the expert's knowledge on the subjects was not a matter of such common knowledge as to invade the province of the jury).

When expert testimony is required

Based on the language of § 490.065.1, expert testimony is permissive and not necessary. But expert testimony is required when a fact at issue is so technical or complex that a fact-finder could not resolve the issue without expert testimony. Stone v. Mo. Dep't of Health & Senior Servs., 350 S.W.3d 14, 21 (Mo. banc 2011). For example, it has been required to:

· explain the results of medical tests and blood work;

· explain the medical standard of care and breach of that duty in a medical malpractice case; and

· establish causation when there is a sophisticated injury that involves a highly scientific technique for diagnosis.

Id. Moreover, "[e]xpert testimony is required to prove proximate causation in legal malpractice claims, except in a 'clear and palpable' case," Meyer v. Purcell, 405 S.W.3d 572, 578 (Mo. App. E.D. 2013), and it "is often required to establish the causal connection between the accident and some item of . . . injury unless the connection is the kind that would be obvious to laymen, such as a broken leg from being struck by an automobile," Payton v. Union Pac. R.R. Co., 405 S.W.3d 1, 5 (Mo. App. E.D. 2013). The required testimony as to causation must be given to a reasonable degree of certainty. Nadolski v. Ahmed, 142 S.W.3d 755, 761 (Mo. App. W.D. 2004). But in regard to future consequences, when an expert testifies "to a reasonable degree of certainty that a defendant's conduct placed the plaintiff at an increased risk of suffering possible future consequences," Missouri courts have long held that such testimony is admissible "even if those future consequences are not reasonably certain to occur." Lowe v. Mercy Clinic E. Cmtys., 592 S.W.3d 10, 27–28 (Mo. App. E.D. 2019) (citations omitted). For this reason, "expert testimony is admissible where it addresses the probability, short of reasonable certainty, that future treatment may be necessary and of the potential cost of such treatment." Id. at 28 (citations and internal quotation marks omitted).

Persons who are qualified to provide expert opinion testimony

To qualify as a witness who may provide expert opinion testimony, the person must have knowledge, skill, experience, training, or education so that the opinion that the person provides will be of assistance to the trier of fact. Section 490.065; MacDonald v. Sheets, 867 S.W.2d 627, 630 (Mo. App. E.D. 1993).

The use of the disjunctive "or" in § 490.065 recognizes that an expert may be qualified on a basis other than education. Johnson v. State, 58 S.W.3d 496, 499 (Mo. banc 2001).

The trial court is considered an expert on the question of attorney fees

"The trial court is considered an expert as to the necessity, reasonableness, and value of attorney's fees for both trial and appellate work." Goins v. Goins, 406 S.W.3d 886, 891 (Mo. banc 2013). "'[Absent] contrary evidence, the trial court is presumed to know the character of the services rendered in duration, zeal and ability, and to know the value of them according to custom, place, and circumstance."' McCoy v. The Hershewe Law Firm, P.C., 366 S.W.3d 586, 596 (Mo. App. W.D. 2012) (quoting Dominion Home Owners Ass'n v. Martin, 953 S.W.2d 178, 182 (Mo. App. W.D. 1997)); see also Schubert v. Schubert, 366 S.W.3d 55, 75 (Mo. App. E.D. 2012) ('"The trial court is considered an expert as to the necessity, reasonableness, and value of attorney's fees [in a marriage dissolution action] and thus, the trial court's decision is presumptively correct.'") (quoting Kelly v. Kelly, 340 S.W.3d 673, 680 (Mo. App. W.D. 2011)).

Requirement that the person's knowledge regarding the subject be superior to the jury's

The test for qualifying a witness under § 490.065.1, is whether:

· the expert's knowledge of the issue in question is superior to that of the ordinary juror; and

· the testimony would aid the jury in deciding the issue on which the expert testified.

Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 175 (Mo. App. W.D. 2006).

Thus, it must be shown that by reason of "education or specialized experience the witness possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of drawing correct conclusions." Donjon v. Black & Decker (U.S.), Inc., 825 S.W.2d 31, 32 (Mo. App. E.D. 1992); Thomas v. Festival Foods, 202 S.W.3d 625, 627 (Mo. App. W.D. 2006); see also Stucker v. Chitwood, 841 S.W.2d 816, 820 (Mo. App. S.D. 1992) ("in an automobile negligence case, an expert witness . . . may not state his opinion as to what actions of the parties, if any, contributed to the collision or as to who was at fault in causing the collision" because opinions must be helpful to the trier of fact, and jurors are just as capable of drawing their...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT