Expert witnesses

• Author: Helen E. Freedman/Gerald Lebovits
• Pages: 373-426

16-1

CHAPTER 16

EXPERT WITNESSES

I. PRINCIPLES

A. General Points

§16:10 Denition and Distinctions

§16:20 Standards Governing Admissibility

§16:30 Qualication as an Expert

§16:40 Basis for Expert Testimony

§16:45 Conduit Hearsay Is Not Allowed

§16:50 Weight Accorded Expert Testimony

§16:60 Subjects of Expert Testimony — Testimony Admissible

§16:65 Subjects of Expert Testimony — Testimony Not Admissible

B. Procedure

§16:70 Disclosure Requirements

§16:80 Compelling Expert Testimony

§16:90 Objecting to Expert Witness Testimony

§16:100 Examining Expert Witness at Trial

II. OBJECTIONS

§16:110 Lack of Qualications

§16:115 Lack of Adequate Basis

§16:116 [Reserved]

§16:117 Opinion Based on Hearsay

§16:120 Ultimate Issue

§16:130 Inappropriate Hypothetical Question

§16:140 Scientic Evidence

§16:150 Identication Evidence

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16-3 EXPERT WITNESSES §16:20

I. PRINCIPLES

A. General Points

§16:10 Def‌inition and Distinctions

An expert is a person with sucient background, experience, or study to express an opinion on questions

of fact relating to skills, science, medicine, business, or technology not within the range of ordinary training or

experience. Meiselman v. Crown Heights Hosp., Inc., 285 N.Y.389, 34 N.E.2d 367 (1941); Matter of Sanchez, 141

Misc.2d 1066, 535 N.Y.S.2d 937 (Fam. Ct., Bronx County, 1988). To qualify as an expert, a showing must be

made that the witness is skilled in the profession to which the subject relates. Meiselman v. Crown Heights Hosp.,

Inc., 285 N.Y.389, 34 N.E.2d 367 (1941); People v. Greene, 153 A.D.2d 439, 552 N.Y.S.2d 640 (2d Dept. 1990);

for qualication of expert, see §16:30.

Admission of expert testimony lies within the sound discretion of the trial judge. People v. Brown, 97 N.Y.2d

500, 743 N.Y.S.2d 374 (2002); People v. Lee, 96 N.Y.2d 152, 726 N.Y.S.2d 361 (2001); Price v. New York City

Housing Authority, 92 N.Y.2d 553, 684 N.Y.S2d 143 (1998); People v. Miller, 91 N.Y.2d 372, 670 N.Y.S.2d 978

(1998); Dufel v. Green, 84 N.Y.2d 795, 622 N.Y.S.2d 900 (1995); Mariano v. Schuylerville Central School District,

309 A.D.2d 1116. 766 N.Y.S.2d 388 (3d Dept. 2003); Heraud v. Weissman, 276 A.D.2d 376, 714 N.Y.S.2d 476

(1st Dept. 2000). In general, expert witness testimony is admissible where the conclusions to be drawn depend on

professional or scientic knowledge or skill not within the fact nder’s range of ordinary training or intelligence.

Dufel v. Green, 84 N.Y.2d 795, 622 N.Y.S.2d 900 (1995); De Long v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d

611 (1983); Hurrell-Harring v. State, 119 A.D.3d 1052, 990 N.Y.S.2d 286 (3d Dept. 2014).

Lay witnesses are generally conned to giving testimony concerning facts or observations. Giraldez v. City of

New York, 214 A.D.2d 461, 625 N.Y.S.2d 517 (1st Dept. 1995); People v. Russell, 165 A.D.2d 327, 567 N.Y.S.2d

548 (2d Dept. 1991), a ’d 79 N.Y.2d 1024, 584 N.Y.S.2d 428 (1992). Lay witnesses are thus precluded from draw-

ing conclusions or oering opinions with respect to “ultimate issues” in a case. LaPenta v. Loca-Bik Ltee Transport

et al., 238 A.D.2d 913, 661 N.Y.S.2d 132 (4th Dept. 1997) (police ocer’s notation that accident was caused by

“plainti’s inattention” was an improper invasion of jury’s province).

In contrast, expert witnesses may give opinion testimony where the conclusions to be drawn from the facts

depend on professional or scientic knowledge or skill not within the range of ordinary training or intelligence.

People v. Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110 (1983); People v. Rivers, 18 N.Y.3d 222, 960 N.E.2d 419 (2011).

And in some situations, experts may oer opinions about ultimate issues. Admissibility turns on whether there is

another way to state or describe the facts to the jurors in a manner that enables them to form an accurate judgment,

and no better evidence than such opinion is available. People v. Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110 (1983);

People v. Rivers, 18 N.Y.3d 222, 960 N.E.2d 419 (2011); Brullo v. Schiro, 239 A.D.2d 309, 657 N.Y.S.2d 92 (2d

Dept. 1997); Sanders v. Otis Elevator Co., 232 A.D.2d 327, 649 N.Y.S.2d 19 (1st Dept. 1996); but see Faber v. New

York City Housing Authority, 258 A.D.2d 394, 685 N.Y.S. 691 (1st Dept. 1999) (plainti’s expert was properly

precluded from testifying as to ultimate issue, i.e., negligence); for permissible subjects for expert testimony, see

§16:60; for opinion testimony by lay witness, see Ch. 15.

§16:20 Standards Governing Admissibility

Generally, a party must establish the following foundation before eliciting expert testimony at trial:

• ere is a need for an expert, shown in one of the two following ways:

• Expert testimony would help clarify an issue calling for professional or technical knowledge beyond

the ken of typical jurors. People v. Inoa, 25 N.Y.3d 466, 34 N.E.3d 839 (2015); People v. Brown, 97

N.Y.2d 500, 743 N.Y.S.2d 374 (2002); People v. Lee, 96 N.Y.2d 152, 726 N.Y.S.2d 361 (2001); De

Long v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611 (1983); People v. Rivers, 18 N.Y.3d 222, 960

N.E.2d 419 (2011) (expert testimony regarding cause of re in arson trial was unnecessary because

the evidence adduced at trial conclusively established that the res were intentionally set).

• e subject matter is outside the common knowledge and experience of ordinary jurors. See Price v.

New York City Housing Authority, 92 N.Y.2d 553, 684 N.Y.S2d 143 (1998) (expert testimony concern-

ing likelihood of criminal to gain access whether or not lock was properly functioning was admissible);

Sawyer v. Dreis & Krump Manufacturing, 67 N.Y.2d 328, 502 N.Y.S.2d 696 (1986) (expert testimony