Chapter 4 - § 4.4 • EXPERT OPINION

• Jurisdiction: Colorado

§ 4.4 • EXPERT OPINION

§ 4.4.1—Introduction

Expert opinion testimony is admissible only after you have established that the witness does, in fact, have special knowledge by eliciting preliminary evidence of expertise, and after you have established that the expert has sufficient knowledge about the facts of the particular case. Status as an expert may be acquired through knowledge, skill, experience, training, education, or a combination of these factors. See FRE 702; CRE 702. A lawyer intending to use an expert should interview that expert in detail prior to trial so that he or she is aware of the knowledge, skill, experience, training, and education of the proposed expert in order to conduct an effective examination. It is embarrassing, to say the least, to ask an expert whether he or she has done any writing in his or her field of specialty if the answer is no.

Whether a person qualifies as an expert is within the sound discretion of the court. People v. Williams, 790 P.2d 796, 798 (Colo. 1990); People v. Martinez, 74 P.3d 316, 322 (Colo. 2003); Farmland Mut. Ins. Co. v. Chief Indus., Inc., 170 P.3d 832, 835 (Colo. App. 2007). However, "expert testimony that relies on bare assertions, subjective belief, or unsupported speculation" is not permitted. Estate of Ford v. Eicher, 250 P.3d 262, 267 (Colo. 2011) (citing People v. Ramirez, 155 P.3d 371, 378 (Colo. 2007)). The standard for review of a Daubert or Shreck determination (both discussed below) on admission of expert testimony is abuse of discretion. Williams, 790 P.2d at 797-98; see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-43 (1997) (discussing Daubert); Eicher, 250 P.3d at 266. Before an expert is allowed to testify in state court, the judge must determine (1) whether the scientific principles behind the testimony are reliable, (2) whether the witness is qualified to provide the subject testimony, and (3) whether the testimony will be useful to the jury. People v. Shreck, 22 P.3d 68, 78 (Colo. 2001). In an illustrative case, the issue was whether an expert could testify that it was more likely than not that the defendant shot the victim accidentally. People v. Wilkerson, 114 P.3d 874, 875-76 (Colo. 2005). The court noted that the standard under CRE 702 and Shreck is lax, but nonetheless held that the testimony was properly excluded. Id. at 876-78. In support of its reasoning, the court noted that the "expert opinion was virtually without any support in the record whatsoever, much less support sufficient to demonstrate the reliability of a numeric calculation of the probability that the shooting in this case was accidental." Id. at 877. While expert testimony will not be excluded merely because the opinion is not capable of quantification, expert testimony that is merely a subjective opinion expressed in numeric terms is not admissible. Id. at 878.

Deciding whether expert testimony is based on new science or junk science remains a difficult issue for lawyers and judges. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the U.S. Supreme Court held that the Federal Rules of Evidence did not incorporate the "general acceptance" standard adopted in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Instead, FRE 702 provides a more liberal rule for admitting relevant expert testimony. The Colorado Supreme Court similarly noted that the current version of CRE 702 has abandoned the "general acceptance" standard in favor of a more flexible test. Shreck, 22 P.3d at 78.

In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court extended the reasoning in Daubert, which concerned expert scientific testimony, to all expert testimony. Colorado courts have similarly noted that the flexible Shreck test provides trial courts with the discretion to determine the specific procedure to analyze a proffered expert's testimony, rather than utilizing a distinct legal standard for different types of expert testimony. People v. Wilson, 318 P.3d 538, 543-46 (Colo. App. 2013); People v. Rector, 248 P.3d 1196, 1200-01 (Colo. 2011) (citing Kuhmo).

A full discussion of Daubert, Kumho, Shreck, Eicher, Wilkerson, and other recent cases on whether proposed expert testimony is sufficiently reliable to be admissible is beyond the scope of this chapter. However, any practitioner must have a clear understanding of the standards of reliability applicable, and the judge's role in deciding this initial question before offering expert testimony. See generally Colorado Evidentiary Foundations § 4.J (2008).

Expert opinion testimony on matters within the witness's field of expertise is admissible whenever it will aid the jury in reaching a decision, even if the expert's opinion touches on the ultimate issues that the jury must decide. CRE 704 ("Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."); but see People v. Gaffney, 769 P.2d 1081, 1087 (Colo. 1989) (noting that "the rules are not intended to permit experts to 'tell the jury what result to reach.'"). Therefore, although such testimony is generally admissible, it may be subject to attack on the grounds that it is not inferable from personal knowledge, not helpful to the jury, not based on reliable science or expertise, or not sufficiently probative under CRE 403. Venalonzo v. People, 388 P.3d 868, 886 (Colo. 2017) (Coates, J., concurring); see also Gaffney, 769 P.2d at 1087; Shreck, 22 P.3d at 77.

§ 4.4.2—Foundation Requirements for Expert Opinion Testimony

The following are three foundation requirements for expert opinion testimony in Colorado state courts:

• Assistance to the trier of fact;
• Qualification of the expert; and
• Reliability of principle or method used by or relied upon by the expert.

Testimony is commonly elicited from an expert through the use of hypotheticals. An expert may rely upon facts acquired through the expert's first-hand observation, through facts presented at trial, or facts that are of "a type reasonably relied on by experts in the field." People v. Valencia, 257 P.3d 1203, 1205 (Colo. App. 2011); Gold Rush Investments, Inc. v. G.E. Johnson Constr. Co., 807 P.2d 1169, 1173 (Colo. App. 1990); see also CRE 703. If reasonably relied upon by experts in the field, this evidence need not be admissible. CRE 703; Valencia, 257 P.3d at 1205. Rule 703 of the Federal Rules of Evidence similarly allows opinions based on facts or data that have not been admitted in evidence, and may not even be admissible, "[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject." For example, doctors often rely on opinions from other doctors in forming their opinions. Under this rule, a treating physician who is not an expert radiologist may be able to give an opinion about the presence or absence of a fracture based upon the opinion of an expert radiologist. The typical scenario involves the radiologist offering his opinion to the treating physician in the course of treatment, outside the courtroom. The expert radiologist would not have to be called at trial to lay a foundation for the treating physician because this was a fact reasonably relied upon by the treating physician in the course of treating the patient.

§ 4.4.3—Sample Examinations of Expert Witnesses

Counsel might ask the following questions to qualify an expert. In certain cases, variations of the same inquiry are set forth in parentheses. Note: even if the other party stipulates to expertise, some background should be put in since the jury must still be convinced of the expertise of the witness.

Establishing Expertise

Basic Facts

• What is your name? (or, Please state your name.)

• Where do you live? (or, What is your address?)

• What is your business? (or, What is your occupation?, Where are you employed? and What are your duties at your place of employment?)

• How long have you been a ___? (or, How long have you practiced as a ___? or, How long have you been employed as a ___?)

• Sir or Madam, do you understand that it is necessary to ask a number of questions relating to your knowledge, skill, experience, training, and education so that the jury will be in a better position to appreciate your qualifications as a witness and then to evaluate any testimony you might give? (Obviously, this question will depend on the witness's background. For example, if the witness's expertise is based solely on

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