Qualification of Experts and Admissibility of Expert Testimony

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 417-486

CHAPTER 15

Qualification of Experts and

Admissibility of Expert

Testimony

§15:01 New York Trial Notebook 15-2

I. GENERAL POINTS

§15:01 Purpose: To Provide

Information and Opinions

Expert witnesses testify about matters beyond the

knowledge of the general public for two purposes:

• To present scientific, technical, historic,

or other information that is not readily

available from lay witnesses; and

• To give opinions on a variety of subjects

relevant to the proceedings.

[See Dougherty v. Milliken, 163 NY 527, 533, 57

NE2d 757 (1900); Colon v. Bridge Plaza Rental

Corp., 46 AD 13, 360 NYS2d 896 (1st Dept 1974).]

It is important to remember that in presenting

information (not opinion) beyond the ken of

the average person, the witness must not only

be qualified as an expert, but must have been

disclosed as an expert (see Ch 5). In some courts’

minds, the distinction between information and

opinion may be blurred. In Parlante v. Cavallero,

73 AD3d 1001, 900 NYS2d 749 (2d Dept 2010),

the trial court properly precluded the proposed

expert testimony of one of plaintiff’s witnesses

for failure to meet the notice requirements of

CPLR 3101(d)(1)(i). But the Second Department

also held that “[c]ontrary to plaintiff’s contention,

to the extent that the Supreme Court precluded

additional fact-based testimony offered by the

subject witness, it properly exercised its discretion,

given the probability that such testimony would

have amounted to unqualified expert opinion.” Id.

at 1003, 900 NYS2d at 751-752.

§15:02 Issues Presented by

Opinion Testimony

There is usually little difficulty in presenting

information to the jury through an expert witness if

the information is relevant and the expert witness is

able to lay a sufficient foundation.

Opinion testimony, on the other hand, may raise

several issues:

• Whether the area is a proper subject for

expert opinion [see §15:80 ff].

• Whether the expert is qualified to give the

opinion [see §15:70 ff].

• Whether there is sufficient foundation for

the opinion [see Ch 26].

• Whether the opinion as expressed is

sufficient to make out a prima facie case

[see §15:10 ff].

Even if an expert’s opinion is inadmissible,

the expert should still be allowed to testify as

to his or her factual findings and observations.

[Dougherty v. Milliken, 163 NY 527, 57 NE2d 757

(1900); Damon Runyon Memorial Fund for Cancer

Research, Inc. v. Service Contracting Co., 34

AD2d 904, 311 NYS2d 340 (1st Dept 1970) (when

court circumscribed expert testimony, refusal to

even allow them to testify as to their observations

was error; retrial required).]

Where “conflicting expert testimony

is presented, the jury is entitled to accept one

expert’s opinion and reject that of another. [cites

omitted] The jury’s resolution of conflicting expert

testimony is entitled to great weight on appeal, as

the jury had the opportunity to observe and hear

the experts.” [Ross v. Mandeville, 45 AD3d 755,

757, 846 NYS2d 276, 279 (2d Dept 2007).] “A

jury is not required to accept an expert’s opinion to

the exclusion of facts and circumstances disclosed

by other testimony and/or the facts disclosed on

cross-examination . . . Indeed, a jury is at liberty to

reject an expert’s opinion if it finds the facts to be

different from those which formed the basis for the

opinion or if, after consideration of all the evidence

in the case, it disagrees with the opinion.” [Nelson

v. Schwartz, 90 AD3d 626, 626, 933 NYS2d 880,

880-881 (2d Dept 2011).]

A party might argue that jurors may reject

uncontested expert testimony, given that they are

the “sole, exclusive judges of the facts” (Pattern Jury

Instruction (PJI) 1:37), that they decide how much

weight to give particular testimony (PJI 1:41), and

that the jurors “may also reject the [expert] opinion

if, after careful consideration of all the evidence in

the case, expert and other, you disagree with the

opinion” (PJI 1:90, emphasis added). However, “a

jury’s rejection of an expert’s opinion cannot be

made arbitrarily, but must be based on conflicting

foundational facts or opinion found in the record,”

and “a jury’s determination not to accept expert

testimony and opinion must be supported by other

testimony or by the cross-examination of the

expert.” [Calderon v. Irani, 296 AD2d 778, 779,

745 NYS2d 610, 612 (3d Dept 2002). See §15:172,

Uncontroverted Expert Testimony.] Therein lies at

least part of the rationale for a trial court having the

15-3 Qualifications of Experts and Admissibility of Expert Testimony §15:10

power to reverse a verdict and order a new trial on

the ground that the verdict is against the weight of

the evidence. See §38:31.

In the proper case, solidly founded expert

opinion may overcome lay witness testimony. In

Green v. South Colonie Central School District,

81 AD3d 1139, 916 NYS2d 345 (3d Dept 2011),

plaintiff alleged he was injured when the school

bus he was riding on suddenly stopped and braked.

“While both [plaintiff and his brother seated next

to him] recollected a quick or sudden stop by

the bus, such testimony is utterly refuted by the

video evidence and [defendant’s expert]’s analysis

thereof.” Id. at 1141, 916 NYS2d at 347. The

Third Department also rejected plaintiff’s mother’s

testimony that “the bus stopped too fast” based on

her review of the video, which constituted improper

lay opinion testimony.

[§§15:03–15:09 Reserved]

II. WHEN EXPERT

TESTIMONY IS REQUIRED

FOR PRIMA FACIE CASE

A. GENERAL POINTS

§15:10 Expert Testimony May Be

Necessary for Prima Facie

Case

Expert testimony may be necessary on an

issue to establish a prima facie case. Decisions on

retaining experts should be made long before trial.

Certainly, counsel should have carefully examined

the elements necessary to present a prima facie

case, and, if necessary, retained one or more experts

to establish such points. If any of those elements is

beyond the knowledge and experience of ordinary

jurors, by definition an expert is required. For

example, most personal injury cases require expert

medical testimony to establish the extent of injury

and prognosis, including duration and extent of

disability. While establishing past economic loss

may be simply a matter of showing absence

from work and rates of pay, future economic loss

requires expert testimony. And if defendant wishes

to dispute a figure offered by plaintiff’s expert,

it may be prudent to have an expert testify for

the defense. In Clotter v. New York City Transit

Authority, 68 AD3d 518, 892 NYS2d 320 (1st

Dept 2009), in rejecting defendant’s challenge to

plaintiff’s awards for past and future lost earnings,

the First Department observed that the amounts

were supported by her expert, and since defendant

failed to present expert testimony of its own, the

jury could properly rely upon the testimony of

plaintiff’s expert. In more specialized litigation,

expert testimony is routinely used, e.g., to establish

the standard of care, a deviation from that standard,

and causation in medical malpractice cases, or to

demonstrate defective design in product liability

cases. On the other hand, to establish that a party

was negligent by some simple act or omission does

not require expert testimony. Then, of course, there

are the “gray” areas, where expert testimony may

or may not be appropriate, and where imaginative

counsel attempt to push the envelope in bringing

forth experts to bolster their case by speaking

authoritatively on subjects that may or may not

truly assist the trier of fact.

CASE EXAMPLES:

Expert Required for Prima Facie Case

• Razzaque v. Karkow Taxi, Inc., 238 AD2d

161, 162, 656 NYS2d 208, 209 (1st Dept

1997). Court erred in permitting plaintiff

to offer evidence of the nature, extent

and effect of his injuries, “matters clearly

beyond his competence, without testimonial

support from an expert medical witness.”

• Easley v. City of New York, 189 AD2d 599,

592 NYS2d 690 (1st Dept 1993). Award

for lost earnings speculative due to lack of

competent medical evidence that plaintiff’s

inability to work was attributable to injuries

sustained in the accident.

• Scannapieco v. New York City Transit

Authority, 200 AD2d 410, 606 NYS2d 614

(1st Dept 1994). Where plaintiff’s expert

psychiatrist was properly precluded due to

failure to exchange medical reports, there

was no expert testimony on the issue of

defendant’s 1-hour delay in transporting

plaintiff to a hospital allegedly resulting in

mental injuries; jury was left to speculate as

to causation; verdict for plaintiff reversed

and complaint dismissed.