The Necessity for Expert Testimony to Sustain the Plaintiff's Burden of Proof in Negligence and Strict Liability Actions
| Publication year | 2000 |
| Pages | 174 |
| Citation | Vol. 07 No. 2000 Pg. 174 |
July 2000, pg. 174. The Necessity for Expert Testimony to Sustain the Plaintiff's Burden of Proof in Negligence and Strict Liability Actions
July 2000
Expert testimony is admissible evidence when "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue...."(Fn1) By its terms, Rule 702 incorporates a permissive standard for admissibility of expert testimony: the witness "may testify ... in the form of an opinion or otherwise."(Fn2) The permissive language of Rule 702 poses a potential trap for the unwary as it fails to emphasize that there are many instances in which the Law Court has decided that expert testimony is required to sustain the burden of proof for particular torts.
The recent emphasis on the trial court's gatekeeping function under Daubert and its progeny to assure the reliability of expert testimony has drawn attention to the impact excluding such testimony can have when expert testimony is essential to establish an element of a cause of action.(Fn3) This article explores that important question of substantive law: when is expert testimony necessary to a plaintiff's case? The consequences for failing to introduce expert testimony can be severe. It is black letter law that plaintiff's failure to prove a prima facie case will result in summary judgment or a directed verdict in favor of the defendant.(Fn4)
This pitfall has most recently been illustrated in Weisgram v. Marley Company,(Fn5) the latest in the Supreme Court's series of decisions regarding expert testimony. In Weisgram, the expert testimony offered by the plaintiff was deemed deficient for the first time on appeal, yet the power of the appellate court to proceed to enter judgment in favor of a defendant was affirmed.(Fn6) In Weisgram, Plaintiff had initiated a products liability action against the manufacturer of an electric baseboard heater that had supposedly malfunctioned, caught fire and caused the death of plaintiff's mother. At trial, plaintiff introduced the testimony of three witnesses, proffered as experts, in an effort to establish that the heater was defective and to establish causation.
After plaintiff prevailed at trial, the manufacturer appealed to challenge the admissibility of each of the experts.(Fn7) For various reasons, the appeals court found that each expert did not have either sufficient qualifications to render the opinion ultimately given or there was an inadequate foundation to render the opinions.(Fn8) On certiorari to the Supreme Court, the Court assumed that the record was insufficient to justify a plaintiff's verdict "[s]horn of the erroneously admitted expert testimony...."(Fn9) Thus, the Court was left to consider what options were available once a plaintiff's case had been fatally affected by the exclusion of expert testimony during or after trial: "May the court of appeals then instruct the entry of judgment as a matter of law for defendant, or must that tribunal remand the case, leaving to the district court's discretion the choice between final judgment for defendant or a new trial of plaintiff's case."(Fn10) Noting that "[s]ince Daubert . . . parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet," the Court brushed aside the suggestion that a plaintiff would be punished inappropriately if judgment could be entered on appeal for a defendant where the appeals court found plaintiff's expert evidence to be deficient.(Fn11) The Supreme Court affirmed "the authority of courts of appeal to direct the entry of judgment as a matter of law ... in cases in which, on excision of testimony erroneously admitted, there remains insufficient evidence to support the jury's verdict."(Fn12)
The Law Court has also recognized the power of the court to enter judgment as a matter of law where plaintiff's expert evidence is found insufficient at trial. In Pitt v. Frawley,(Fn13) the Law Court affirmed judgment as a matter of law in favor of an attorney in a malpractice action because the plaintiff failed to introduce expert testimony establishing the standard of care owed by an attorney under the circumstances. Pitt involved a malpractice action in which an ostensible client brought suit against his attorney and sought to cross-examine the attorney regarding provisions of the Maine Bar Rules. Because the plaintiff had failed to designate the adverse party/attorney as an expert witness, the trial court excluded the opinion testimony regarding the Bar Rules.
On appeal, the Law Court observed that previous rulings required expert testimony "in a legal malpractice claim to establish the appropriate standard of care."(Fn14) The Court determined that the trial court had appropriately excluded such testimony as a sanction for failing to designate the adverse party as an expert witness. Accordingly, the Court held "[b]ecause Pitt did not present expert testimony on the appropriate standard of care, the court did not err by refusing to instruct the jury on the issues of negligence arising from the Maine Bar Rules."(Fn15)
The moral of Weisgram and Pitt is clear: a plaintiff who fails to offer admissible expert testimony at trial where such testimony is required to prove a case risks judgment as a matter of law.(Fn16) The rest of this article explores what types of actions have such requirements.
Since 1954 the Law Court has required expert testimony in medical malpractice actions.(Fn17) In Cyr v. Giessen, plaintiff brought suit against a physician who had treated plaintiff for a fractured femur after plaintiff developed necrosis of the femoral head during his post-operative course. Plaintiff asserted that the treating physician had been negligent in rendering post-operative care by failing to take sufficient x-rays to...
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