§703 Bases of Opinion Testimony by Experts

LibraryEvidence Restated Deskbook (2021 Ed.)

§703 Bases of Opinion Testimony by Experts

The facts or data that an expert may rely on. An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

Notes

A. Facts or data that an expert may rely on

Section 490.065, RSMo Supp. 2019, which was repealed and reenacted effective August 28, 2017, to add one new section setting forth the standards for the admission of expert testimony, specifies the facts or data upon which an expert may base an opinion or inference. Although there are two provisions in the statute dealing with this topic, each applicable to the type of action or proceeding brought, the provisions are basically the same. See §702 above for the actions and proceedings covered by subsection 1 and subsection 2 of the statute.

Subsection 1 actions allow the facts or data to be:

· those perceived by the expert at or before the hearing; or

· those made known to the expert at or before the hearing.

Section 490.065.1(3).

Similarly, subsection 2 actions allow the facts or data to be:

· those personally observed by the expert; or

· those the expert has been made aware of.

Section 490.065.2(2).

An opinion may be based on facts or data not admissible
in evidence, when

Moreover, both subsections allow experts to form an opinion based on facts or data not admissible in evidence if experts in the particular field would reasonably rely on those facts or data in forming an opinion on the subject. This is specifically stated in § 490.065.2(2) and in prior caselaw construing former § 490.065.3, which is now § 490.065.1(3). See, e.g., CADCO, Inc. v. Fleetwood Enters., Inc., 220 S.W.3d 426, 434 (Mo. App. E.D. 2007); 8000 Maryland, LLC v. Huntleigh Fin. Servs. Inc., 292 S.W.3d 439, 446 (Mo. App. E.D. 2009); State ex rel. Mo. Highway & Transp. Comm'n v. Sisk, 954 S.W.2d 503, 508–09 (Mo. App. W.D. 1997) (the facts or data do not need to be independently admissible if the requirements of (then) § 490.065.3 are met); Peterson v. Nat'l Carriers, Inc., 972 S.W.2d 349, 354 (Mo. App. W.D. 1998) (§ 490.065.3 (now § 490.065.1(3)) does not prohibit an expert from relying on hearsay):

[The section] recognizes the generally accepted principle that an "expert necessarily acquires his knowledge and expertise from many sources, some of which are inadmissible hearsay. Merely because an expert relied on information and opinions of others does not automatically disqualify his testimony. As long as such sources serve only as a background for his opinion and are not offered as independent substantive evidence . . . he should not be precluded from testifying."

Peterson, 972 S.W.2d at 354 (citation omitted).

More specifically, an expert's opinion may be based on the following:

· Personal observation. Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 176–77 (Mo. App. W.D. 2006); Black v. U-Haul Co. of Mo., 204 S.W.3d 260, 266 (Mo. App. E.D. 2006).

· The literature in the field, including published articles. Byers v. Cheng, 238 S.W.3d 717, 729 (Mo. App. E.D. 2007).

· Education. Id.

· Out-of-court statements. Peterson, 972 S.W.2d at 354; Sisk, 954 S.W.2d at 508–09.

· Out-of-court records:

- Lau v. Pugh, 299 S.W.3d 740, 755 (Mo. App. S.D. 2009) (in trespass action involving the cutting of trees, there was no abuse of discretion in permitting an expert witness to give an opinion based on property cards showing the valuation of properties obtained from the county assessor's office—"Pursuant to section 490.065.3, she was entitled to testify as to these out-of-court records in view of the fact that they were of a type reasonably relied upon by experts in the field.")
- Mass. Gen. Life Ins. Co. v. Sellers, 835 S.W.2d 475, 479–80 (Mo. App. S.D. 1992) (no error in allowing a surveyor to testify that his survey was tied to a "government corner" because, under § 490.065.3, he "could [and did] rely on records of the DNR's Division of Geology and Land Survey in expressing his opinion that he had started at a perpetuated corner because (a) he was aware of the records before the hearing; (b) the records are of a type reasonably relied upon by surveyors in forming their opinions or inferences; and (c) the records are otherwise reasonably reliable")

· Review of deposition testimony, photographs, and accident reports (or the lack thereof). Black, 204 S.W.3d at 266; Freight House Lofts Condo Ass'n v. VSI Meter Servs., Inc., 402 S.W.3d 586, 596 (Mo. App. W.D. 2013) (reliance on depositions of other witnesses).

· Trial testimony. Because § 490.065.1(3) allows an expert to base an opinion on facts or data made known to the expert at trial through testimony, a trial judge may allow an expert witness to be present in the courtroom, notwithstanding a request to exclude witnesses from the courtroom. Grab ex rel. Grab v. Dillon, 103 S.W.3d 228, 236–37 (Mo. App. E.D. 2003).

B. The facts or data that an expert relies on must be reasonably reliable.

1. Section 490.065.1, RSMo Supp. 2019, Cases

Reliability is specifically stated as a requirement in § 490.065.1(3) ("and must be otherwise reliable").

This requires that:

· the sources used to base the opinion, tested by professional acceptance standards in the field, must be reasonably reliable; and
· the sources must otherwise be reasonably reliable as a matter of general evidentiary law.

Thus, even if there is testimony that the facts or data are of the type reasonably relied on by experts in the field, the section also requires the court to independently assess the reliability of the facts or data. State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146, 156 (Mo. banc 2003); Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 176 (Mo. App. W.D. 2006); Kivland v. Columbia Orthopedic Group, LLP, 331 S.W.3d 299, 311 (Mo. banc 2011).

In making the first determination:

trial courts are generally expected to defer to the expert's assessment of what facts or data are reasonably reliable in the field. [However, in regard to the] second requirement . . . ''[i]t is only in those cases where the source upon which the expert relies for opinion is so slight as to be fundamentally unsupported, that the finder of fact may not receive the opinion."

8000 Maryland, LLC v. Huntleigh Fin. Servs. Inc., 292 S.W.3d 439 (Mo. App. E.D. 2009) (citations omitted) (because the sources the expert relied on in forming an opinion regarding fair market value were not so slight as to be fundamentally unsupported, the opinion was properly received). As long as the opinion is not a mere guess or conjecture but is based on facts or adequate data, it is properly received. Vitale v. Duerbeck, 92 S.W.2d 691, 695 (Mo. 1935).

Thus, generally, questions concerning the expert's sources "affect the weight, rather than the admissibility, of the opinion, and are properly left to the jury." Scott, 215 S.W.3d at 176.

Examples of cases in which it was held that the sources were "so slight as to make the opinion fundamentally unsupported"

See:

· Thomas v. Festival Foods, 202 S.W.3d 625 (Mo. App. W.D. 2006) (in a...

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