Chapter 7 - § 7.3 • SPECIAL ISSUES
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Colorado & Federal
➢ Expert's Qualifications or Competency (State and Federal Rule). Preliminary questions concerning the qualification of a person to be a witness or the admissibility of evidence shall be determined by the court. CRE 104(a); FRE 104(a).
Practice Pointer
Even if the expert is expected to be qualified to give the testimony (and thus no Daubert or Shreck motion will be filed), the opponent of the expert may request an opportunity to "voir dire" the expert at the time the expert is offered in a particular area on direct examination at trial. This gives the opponent an opportunity to suggest the limits of the expert's expertise so the jury has those limits in mind during the course of the expert's direct examination.
Colorado
• Qualification
➢ Basis for Qualification. There is no requirement that a proffered expert witness hold a specific degree, training certificate, accreditation, or membership in a professional organization in order to testify on a particular issue. Huntoon v. TCI Cablevision of Colorado, Inc., 969 P.2d 681 (Colo. 1998).
➢ Licensure. Expert witnesses are not disqualified from testifying in Colorado merely because they are not licensed there or do not perform their services there, provided that out-of-state experts have sufficient familiarity with the proper standard of care required by Colorado practitioners. Corcoran v. Sanner, 854 P.2d 1376 (Colo. App. 1993).
➢ Required Findings for Qualification. While it is for the trial court to determine whether a witness is qualified to be an expert, there is no requirement that the court specifically make that finding. People v. Lomanaco, 802 P.2d 1143, 1144 (Colo. App. 1990).
➢ Standard for Qualification. The qualification of an expert witness to testify is within the trial court's discretion. Southerland v. Argonaut Ins. Co., 794 P.2d 1102, 1106 (Colo. App. 1990).
➢ Factors to Consider. The primary consideration in determining a witness's qualifications is the witness's actual knowledge, skill, experience, training, or education, rather than the particular title attributed to the witness. Melville v. Southward, 791 P.2d 383, 387 (Colo. 1990).
Practice Pointer
Neither an expert's curriculum vitae nor his or her report are properly admitted into evidence. The curriculum vitae is cumulative to the qualifications already testified to, and the expert's report is inadmissible hearsay.
• Specific Areas of Offered Expert Testimony
➢ Accident Reconstruction. Testimony of police officer as to speed was not admissible where counsel did not attempt to qualify the police officer as an expert capable of giving an opinion on speed. Simpson v. Anderson, 526 P.2d 298, 299 (Colo. 1974)....
➢ Accident Reconstruction. A highway patrolman may be qualified to estimate speed from the physical facts at the scene of the accident, if it is shown that, because of his or her experience, education, training, and knowledge of facts, his or her opinion as to speed would be something more than a mere layman's guess. Attencio v. Torres, 385 P.2d 659, 662 (Colo. 1963).
➢ Accident Reconstruction. Police officers who arrived at the scene of the accident some 25 to 40 minutes after the accident, observed scuff marks and scratch marks on the road surface, and observed debris on the road were properly permitted to testify as to their opinion of the point of impact and the direction of travel of the vehicles. Hillman v. Bray Lines, Inc., 591 P.2d 1332, 1335 (Colo. App. 1978), aff'd sub nom. Wise v. Hillman, 625 P.2d 364 (Colo. 1979).
➢ Accident Reconstruction. Accident reconstruction expert's opinion as to the speed of the automobile and the time and distance it would take to bring the automobile to a stop was properly admitted. Herness v. Goodrich, 483 P.2d 412, 414-15 (Colo. App. 1971).
➢ Accident Reconstruction. As long as there is sufficient foundation, it is not error for the trial court to allow a police officer to give his or her expert opinion concerning the speed of a vehicle and his or her explanation of how the accident occurred, based upon his or her on-the-scene investigation. People v. Jiminez, 528 P.2d 913, 914 (Colo. 1974).
➢ Architectural Negligence. A chemical engineer specializing in the field of plastics with 20 years' experience in the design and fabrication of skylights in the Denver area was competent to testify as an expert witness on the issue of whether an architect had negligently designed skylights in a shopping center. Perlmutter v. Flickinger, 520 P.2d 596, 597-98 (Colo. App. 1974).
➢ Attorney Testimony. A trial court may accept an attorney as an expert witness when the attorney's knowledge, skill, expertise, training, or education so qualifies him or her. An attorney may give an opinion on the ultimate issue of fact, but not on an ultimate issue of law. Southerland v. Argonaut Ins. Co., 794 P.2d 1102, 1106-07 (Colo. App. 1990).
➢ Biomechanics. The trial court did not abuse its discretion in excluding expert evidence regarding the force threshold injury test results of rear-end crash testing on humans. The trial court did not abuse its discretion in excluding evidence of horizontal G-forces that occur during daily human activities, such as coughing, stepping off a curb, skipping rope, lifting, and the like. Schultz v. Wells, 13 P.3d 846 (Colo. App. 2000).
➢ Canine Scent Tracking. Testimony describing the use of a dog to track an individual by scent, and demonstrating the accuracy of the track, does not involve seemingly infallible scientific devices, processes, or theories. Such testimony is not readily subjected to standards that were not designed with experience-based specialized knowledge in mind. A proper foundation for the admission of scent tracking evidence includes a corroboration component. Brooks v. People, 975 P.2d 1105, 1111-12, 1115 (Colo. 1999).
➢ Dental Malpractice. An oral surgeon who is licensed as a dentist and has completed a residency in oral and maxillofacial surgery has the same standard of care as a general dentist for extraction of a tooth and may render an expert opinion on negligence even though he was not aware of the overall standard of care for general dentists. Sanchez v. Lauffenburger, 784 P.2d 855, 856 (Colo. App. 1989).
➢ Disability. An osteopathic physician and surgeon who had been licensed in Colorado and who had treated 20 to 30 cases of "whiplash" type injury in the last 10 years of his general practice and who had examined, diagnosed, and treated plaintiff was sufficiently qualified to permit him to make a prognosis or to express his opinion as to permanency of the plaintiff's disability from neck injury allegedly received in a rear-end collision. Moseley v. Lamirato, 370 P.2d 450, 454 (Colo. 1962).
➢ Electrocution. An electrician with 30 years' experience with neon lighting systems may testify as an expert on whether there was sufficient amperage to cause electrocution of a neon sign repairman despite his lack of formal training regarding electrical shock trauma to the human body. Sniezek v. Cimino, 360 P.2d 813, 816 (Colo. 1961).
➢ Hedonic Damages. Economist's opinions regarding the amount of "hedonic" (loss of enjoyment of life) damages suffered by the plaintiff did not assist the jurors outside their life experience and was not admissible. Scharrel v. Wal-Mart Stores, 949 P.2d 89, 92 (Colo. App. 1997).
➢ Helicopter Accident. Helicopter pilots were permitted to state their opinions as to the cause of the helicopter accident. State Compensation Ins. Fund v. City of Colorado Springs, 602 P.2d 881, 884 (Colo. App. 1979).
➢ Hematology. The fact that a qualified medical witness was not a specialist in the field of hematology did not go to the question of the admissibility of his testimony concerning coagulation of blood but to the weight to be accorded his opinion. Coates v. Am. Home Assur. Co., 501 P.2d 1347, 1349 (Colo. App. 1972).
➢ Insanity. In a second sanity trial, a psychiatrist who had examined the defendant in connection with the first trial could express his expert opinion based, in part, on the record in the first trial, which included his diagnostic report. People v. Beasley, 687 P.2d 1323, 1326 (Colo. App. 1984).
➢ Insurance Claims. An attorney can testify as an expert on insurance
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