§705 Disclosure of Facts or Data Underlying Expert Opinion

• Library: Evidence Restated Deskbook (2021 Ed.)

§705 Disclosure of Facts or Data Underlying Expert Opinion

1.Section 490.065.1, RSMo Supp. 2019, Cases (See §702 above for actions and proceedings covered.) If a reasonable foundation is laid, an expert may testify in terms of opinion or inference and give the reasons for the opinion or inference without the use of hypothetical questions unless the court believes the use of a hypothetical question will make the expert's opinion more understandable or of greater assistance to the jury because of the particular facts of the case.

2.Section 490.065.2 Cases (See §702 above for actions covered.) Unless the court orders otherwise, an expert may state an opinion and give the reasons for it without testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Notes

A. Section 490.065.1 Cases

Section 490.065 was repealed and reenacted in 2017 to add one new section, setting forth the standards for the admission of expert testimony. Section 490.065.1(4), previously § 490.065.4, continues to provide the requirement of a reasonable foundation before opinion testimony is given in a § 490.065.1 case. It provides:

If a reasonable foundation is laid, an expert may testify in terms of opinion or inference and give the reasons therefor without the use of hypothetical questions, unless the court believes the use of a hypothetical question will make the expert's opinion more understandable or of greater assistance to the jury due to the particular facts of the case.

Source: facts or data provided by factual information not in evidence

When an opinion or inference is supported in whole or in part by facts or data not in evidence, the foundation to be laid is that the facts or data tested by professional acceptance standards in the field are reasonably reliable and are otherwise reasonably reliable as a matter of general evidentiary principle. See "The facts or data that an expert relies on must be reasonably reliable" in §703, supra. The foundation may include testimony of the facts or data relied on, even if the facts or data would constitute inadmissible hearsay, such as telephone interviews:

· as long as the facts or data are reasonably relied on:

- Wulfing v. Kansas City S. Indus., Inc., 842 S.W.2d 133, 152 (Mo. App. W.D. 1992) (telephone interviews and other sources of inadmissible hearsay as basis for valuing stock);

- Byers v. Cheng, 238 S.W.3d 717, 728 (Mo. App. E.D. 2007) (testimony about results in an expert's published article);

- Grab ex rel. Grab v. Dillon, 103 S.W.3d 228, 240 (Mo. App. E.D. 2003) (an expert may disclose the basis of the expert's opinions, even if it is hearsay, provided that the sources are reliable);

- Albers v. Hemphill Contracting Co., 740 S.W.2d 660, 663 (Mo. App. E.D. 1987) (work papers and an audit report of an auditor that summarized information);

- Liberty Fin. Mgmt. Corp. v. Beneficial Data Processing Corp., 670 S.W.2d 40, 53–54 (Mo. App. E.D. 1984) (results of a survey);

- Lau v. Pugh, 299 S.W.3d 740, 754–55 (Mo. App. S.D. 2009) (data relied on for the valuation of property);

- Stallings v. Wash. Univ., 794 S.W.2d 264, 271 (Mo. App. E.D. 1990) (content of medical lecture heard during professional seminar),

and

· as long as the inadmissible hearsay serves only as a background for the expert's opinion and is not offered as independent substantive evidence:

- Byers, 238 S.W.3d at 729

- Grab, 103 S.W.3d at 239

- Stallings, 794 S.W.2d at 271

- Davolt v. Highland, 119 S.W.3d 118, 133 (Mo. App. W.D. 2003)

- Whitnell v. State, 129 S.W.3d 409, 416 (Mo. App. E.D. 2004)

"[T]he standard objection such as that there is no opportunity to test the credibility of its sources at the trial or to cross-examine the witness as to the extrajudicial facts no longer...