Qualification of Experts and Admissibility of Expert Testimony

• Author: Edward L. Birnbaum/Carl T. Grasso/Justice Ariel E. Belen
• Pages: 415-490

EXPERTS:

QUALIFICATIONS,

TESTIMONY

15-1

CHAPTER 15

QUALIFICATION OF EXPERTS AND

ADMISSIBILITY OF EXPERT TESTIMONY

I. GENERAL POINTS

§15:01 Purpose: To Provide Information and Opinions

§15:02 Issues Presented by Opinion Testimony

II. WHEN EXPERT TESTIMONY IS REQUIRED FOR PRIMA FACIE CASE

A. General Points

§15:10 Expert Testimony May Be Necessary for Prima Facie Case

§15:11 Expert Testimony May Not Be Suff‌icient

§15:12 Cover All Bases

§15:13 Reopening to Make Prima Facie Case

B. Medical Malpractice

§15:20 Standard of Care

§15:21 Res Ipsa Loquitur

§15:22 Expert Testimony to Establish Res Ipsa Loquitur

§15:23 Lack of Informed Consent

III. WHO MAY BE CALLED AS AN EXPERT

A. General Points

§15:30 Expert Is Usually Retained by a Party

§15:31 Nonparties May Not Be Compelled to Testify as Experts

B. Calling Other Side’s Expert

§15:40 Calling the Other Side’s Expert Is Usually Not Allowed

§15:41 Exceptions: Pretrial Examination and Inspection of Lost Evidence

§15:42 Exceptions: Examining Physicians

C. Defendant as Plaintiff ’s Expert in Professional Malpractice Case

§15:50 Plaintiff May Ask Defendant for Expert Opinion

§15:51 Applies to Examinations of Defendant Before Trial

§15:52 Defendant’s Expert Opinion on Co-Defendant’s Actions

D. Expert Testimony Given by Deposition

§15:60 Non-Medical Experts

§15:61 Medical Experts

IV. QUALIFICATION OF EXPERT WITNESSES

§15:70 Requirements

§15:71 Trial Court’s Discretion

§15:72 Non-Jury Trial

EXPERTS:

QUALIFICATIONS,

TESTIMONY

New York Trial Notebook 15-2

§15:73 Qualif‌ications for Medical Experts

§15:74 Extent of Expert’s Qualif‌ications

§15:75 Qualif‌ication of Off‌icial Investigative Authorities

V. PROPER SUBJECTS FOR EXPERT TESTIMONY

A. General Points

§15:80 Standard of Admissibility

§15:81 Cumulative Expert Testimony

B. Opinion on “Ultimate Questions”

1. General Rule

§15:90 Ultimate Question Testimony Is Generally Admissible

§15:91 Exception: No Expert Opinion on Negligence

§15:92 Exception: No Expert Opinion on Existence of Duty

§15:93 Exception to Exception: Duty to Warn

§15:94 Exception: No Expert Opinion on Law Governing Contracts

§15:95 Exception: No Expert Opinion on Legal Conclusions

2. Specif‌ic Cases

§15:100 Professional Standard of Care

§15:101 Causation in Professional Malpractice

§15:102 “Ultimate Questions” in Products Liability

§15:103 Serious Injury in Auto Accidents

C. Opinions in Other Areas

§15:110 Standards and Regulations

§15:111 When No Recognized Standard Exists

§15:112 Usual Custom and Practice

§15:113 Party’s Character

§15:114 Witness Credibility

§15:115 Reliability of Eyewitness Testimony

§15:116 Issues to Be Resolved by Jury

§15:117 Expert Opinion on Various Other Issues

VI. ADMISSIBILIT Y OF SCIENTIFIC EVIDENCE

§15:130 Frye Test for Scientif‌ic Evidence

§15:131 Frye Hearing and Trial Foundation Hearing

§15:132 Relationship to Daubert Test

§15:133 When Frye Not Applicable, Trial Court Still Has Screening Role

VII. BASIS [FOUNDATION] FOR EXPERT OPINION

A. Permissible Bases

§15:140 Opinions Must Be Based on Facts in Record or Personal Knowledge

§15:141 Exceptions: Opinions Based on Out-of-Court Material

§15:142 Opinions Based on Personal Observations

B. Inadequate Bases

§15:150 Opinions May Not Be Based on Speculation

§15:151 Opinions May Not Be Based on Facts Not in Evidence or Contrary to Evidence

§15:152 Opinions May Not Be Based on CPLR 3101 Expert Disclosure Statement

C. Opinions Based on Out-of-Court Material

§15:160 Opinions Based on Reports Not Prepared by Expert Witness

§15:161 Medical Opinion Based on X-Rays, CAT Scans, etc. Not in Evidence

§15:162 Admission Into Evidence of Reports Interpreting X-Rays, etc.

§15:163 Medical Opinions Based on Reports of Medical Tests Not in Evidence

§15:164 Evidence of Reliability of Report Required

EXPERTS:

QUALIFICATIONS,

TESTIMONY

15-3 Qualif‌ication of Experts and Admissibility of Expert Testimony

VIII. WEIGHT ACCORDED TO EXPERT TESTIMONY

§15:170 Weight Is Jury Issue

§15:171 Factors for Jury to Consider

§15:172 Uncontroverted Expert Testimony

FORMS

Form 15:10 Notice of Motion for Frye Hearing

Form 15:20 Aff‌irmation in Support of Motion for Frye Hearing