Section 13.13 Might Have, Could Have, Would Have—Qualified Answers by Expert Witnesses

• Library: Sources of Proof (2014 Ed.)

F. (§13.13) Might Have, Could Have, Would Have—Qualified Answers by Expert Witnesses

While expert testimony may be admissible on a subject, the testimony may still fail to make a submissible case or to have sufficient probative value to be admissible if the expert qualifies the expert’s answer. In Hamm v. Director of Revenue, 20 S.W.3d 924 (Mo. App. S.D. 2000), the defendant called an expert to question the validity of a blood alcohol concentration finding of .11%, which is over the legal limit. The expert testified that the actual percentage was “probably” less than .10%, but the expert also admitted that it could have been higher. The court held as a matter of law that this testimony was insufficient to rebut the director’s prima facie case. Id. at 927; see also Rhodes v. Dir. of Revenue, State of Mo., 994 S.W.2d 597, 601 (Mo. App. S.D. 1999) (a chemist’s “estimation” of blood alcohol concentration of less than .10%, coupled with an admission on cross that the actual figure could have been higher than .10%, was held insufficient).

In Shackelford v. West Central Electric Cooperative, Inc., 674 S.W.2d 58 (Mo. App. W.D. 1984), an expert witness testified that, among several causes of a fire, he did not “hold that any one of them is a more powerful probability than the other.” Id. at 62. The court held that this was insufficient to make a submissible case. See also:

· Winkler v. Robinett, 913 S.W.2d 817, 821 (Mo. App. W.D. 1995) (it was insufficient evidence when an expert failed to testify that a fire was probably caused by a problem in the electrical system and the only other evidence of electrical origin was circumstantial)

· Kinealy v. Sw. Bell Tel. Co., 368 S.W.2d 400, 404 (Mo. 1963) (testimony that one potential cause was a “possible” factor is insufficient)

· O’Leary v.

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