Qualification of Experts and Admissibility of Expert Testimony

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 423-496

EXPERTS:

QUALIFICATIONS,

TESTIMONY

CHAPTER 15

QUALIFICATION OF EXPERTS

AND ADMISSIBILITY OF

EXPERT TESTIMONY

§15:01 New York Trial Notebook 15-2

EXPERTS:

QUALIFICATIONS,

TESTIMONY

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). In fact, “[i]n considering the conflicting

testimony of the parties’ respective expert witnesses,

the jury [is] not required to accept one expert’s

testimony over that of the other, but [is] entitled to

accept or reject either expert’s position in whole or

in part.” [Robles v. Polytemp, Inc., 127 AD3d 1052,

1055, 7 NYS3d 441, 444 (2d Dept 2015).]

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

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

EXPERTS:

QUALIFICATIONS,

TESTIMONY

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 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. However, again,

where there is conflicting expert testimony, the

jury is entitled to accept one expert’s opinion over

the other; in Kowalsky v. County of Suffolk, 139

AD3d 906, 907-908, 33 NYS3d 85, 87 (2d Dept

2016), Supreme Court erred in reducing awards

for economic damages; although defendant’s

vocational expert testified that there were jobs that

plaintiff could perform, this created an issue of fact

for the jury, which could still have concluded that

plaintiff was totally disabled.

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. See also Gonzalez v. Village

Taxi Corp., 155 AD3d 696, 701, 64 NYS3d 242,

247 (2d Dept 2017) (plaintiffs presented no experts

to instruct the jury on the “equilibrium theory”

or any other economic theory espoused by their

counsel to justify financial damages; opinion does

not say what this “equilibrium theory” was.) 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