VI Presenting Expert Opinions Based Upon Facts or Data Perceived by the Physician before Trial: Wilson V. Clark and Ill. R. Evid. 703

• Library: The Direct Examination of the Plaintiff's Treating Physician (2017 Ed.)

VI. PRESENTING EXPERT OPINIONS BASED UPON FACTS OR DATA PERCEIVED BY THE PHYSICIAN BEFORE TRIAL: WILSON v. CLARK and ILL. R. EVID. 703

Before the adoption of Federal Rules of Evidence ("FRE") 703 and 705, the law of evidence was demanding in requiring that experts have firsthand information as a basis for the expert's opinion. The "old" common law rule required that an expert who testified to a fact - or an opinion based on certain facts - must have had the opportunity to observe the fact. Barnett v. Aetna Life Insurance Co., 139 F.2d 483 (3d Cir. 1943). This requirement was loosened as courts allowed opinion testimony based on the witness' first-hand knowledge and facts in the trial court's record. 2 Wigmore, Evidence Secs. 672-686 and CJS Sec. 549-560. Often experts testified based on hypothetical data which counsel expected to prove. Barnett v. State Workmen's Compensation Commission, 172 S.E. 2d 698 (W.Va. 1970). In the 1970's the majority view was that a question was improper if it called for the witness' opinion on the basis of reports that are not in evidence. McCormick on Evidence, 2d Edition (1974). Sec. 15, p. 34. Courts continued to...