Hazards of Expert Witnesses: Disclosing Work Product and Limiting Testimony
Fleming, Robert D., Defense Counsel Journal
While the use of experts in litigation has increased markedly in recent years, there are problems that counsel must be careful to consider
THE use of expert witnesses has increased since 1975 when Congress enacted the Federal Rules of Evidence, Rules 702 through 705 of which codify the expert's role in opinion testimony.(1) Expert testimony is not restricted to areas of scientific or technical knowledge. Rule 702 also permits expert testimony relating to "specialized knowledge" if it assists the trier of fact "to understand the evidence or to determine a fact in issue." Experts may come from the traditionally recognized fields of medicine, physics and architecture, and there may be "skilled" witnesses, such as bankers or landowners who testify as to land values.
Rule 702's broad construction has led to the use of expert witnesses in virtually all forms of civil litigation, from antitrust to personal injury.(2) However, the convenience of expert testimony does not come without certain risks to the hiring attorney. These risks include a potential waiver of certain work product protection and limits to the expert's legal opinion testimony.
To what extent are written and oral communications between counsel and a non-party expert witness discoverable under Rule 26 of the Federal Rule of Civil Procedure 26 when the expert witness will testify at trial? To what extent may an expert witness testify on a matter of law under Federal Rules of Evidence 702 and 704?
DISCOVERABILITY OF COMMUNICATIONS
A. Rule 26
The U.S. Supreme Court codified the common law work product rule of Hickman v. Taylor(3) in Federal Rule of Civil Procedure 26. The work product doctrine protects from discovery the attorney's written materials and mental impressions prepared in anticipation of litigation. Rule 26, as amended in December 1993, requires mandatory disclosures and amplifies the rules governing discovery of expert witnesses. The revised rule accents the competing demands between privileged communications and the fairness of thorough discovery. While the U.S. adversary system demands the ability to protect communications incorporating counsel's theories and mental impressions, liberal discovery rules are designed to promote judicial efficiency and credible testimony.
Federal district courts compel discovery of facts and materials that a testifying expert has reviewed, and discovery is typically not conditioned on whether counsel or another party provided the materials. Courts have taken inconsistent approaches when applying Rule 26 discovery to communications that incorporate counsel's work product. The growing trend is to permit thorough discovery, including communications that would otherwise be privileged. Alternatively, some courts view the amended Rule 26 as merely a procedural revision. These courts compel discovery but protect counsel's work product by redacting the privileged sections.(4)
Rule 26(a)(2)(B) requires the disclosure of the "data or other information considered" by expert witnesses in forming their opinions. Rule 26(b)(3), however, protects work product by excluding "mental impressions, conclusions, opinions, or legal theories of an attorney" from discovery. Communications between counsel and experts commonly incorporate the attorney's opinions, traditionally not discoverable, and facts that form the basis of the expert's opinion, always discoverable. Thus, an inherent conflict exists as to which portion of the rule is subordinated to the other.
Courts have harmonized the discovery and work product rules differently. Facilitating the inconsistency is each district's authorization to modify discovery rules. Rule 26(a)(1) allows district courts to modify the discovery process by local rule or order. So what are approaches to reconciling the inconsistencies as applied to various types of expert documents and communications?
B. Contractual Documents
Contractual documents recording the hiring of an expert's services by counsel are discoverable if found relevant to the claim's subject matter. Relevancy is more liberally interpreted in the discovery phase and is not restricted to merely admissible evidence.(5) Similar to other documents, contractual communications can be compelled under Rules 26(b)(1) when they are otherwise unavailable to the requesting party without undue burden, and they reasonably lead to admissible evidence.
In Federal Deposit Insurance Corp. v. Gonzalez-Gorrondona,(6) a federal district court directed the production of an expert's hour and billing information for the previous two years because the court found the information "highly relevant to these proceedings." The court ordered discovery of all billings that the expert made to the FDIC as well as to all other federal and state regulators in connection with his work as an expert.
In B.C.F. Oil Refining Co. v. Consolidated Edison Co.,(7) another federal district court denied a request for the expert's invoices on the ground that Rule 26 does not require the production of documents that are not related to the expert's report. The court held that invoices are not documents "considered" by the expert and serve little use in cross-examination.
The contract an attorney uses in hiring an expert is not immune from discovery, however. When the court determines that the contract may contain information pertinent to the subject matter of the case, the court may order production of the contract. Counsel should be cautious by not including any information in the contract that otherwise would be privileged.
C. Materials Generated by Nontestifying Consultant
Courts will not allow discovery of documents that are prepared by a non-testifying consultant, provided the documents are not reviewed by an expert witness, according to the B.C.F. Refining court, but documents prepared by consultants that are used by a testifying expert are discoverable for cross-examination purposes under Rule 26(b)(1). To be discoverable, the B.C.F. Refining court stated, consulting documents must have some impact on the testifying expert's testimony.
If the expert functions both as a consultant and an expert witness, the party seeking protection from discovery incurs the risk of disclosure. The court will protect work product prepared by an expert performing consulting services only if there is a clear delineation between the two roles. The B.C.F. Refining court stated that "documents having no relation to the expert's role as an expert [witness] need not be produced but ... any ambiguity as to the role played by the expert when reviewing or generating documents should be resolved in favor of the party seeking discovery."(8)
Merely reclassifying an expert as a consultant may not protect the consultant's work from discovery. When counsel has designated an expert as a expert witness, the court may compel the expert to answer interrogatories despite counsel's later decision not to have the expert testify. Counsel must designate the expert either as a consultant or an expert witness when initially disclosing witnesses.(9)
The work product doctrine will not protect documents written by consultants and later forwarded by counsel to a testifying expert. When a party requested documents that counsel supplied to his expert witness, a federal district court did not inquire into the nature of the work product incorporated in the document.(10) Rather, it held that whatever protection the documents may have had no longer applied because the documents were reviewed by the expert witness in preparation for his opinion.
Documents prepared by a non-testifying consultant enjoy protection from discovery provided the documents are requested by counsel in preparation for litigation. However, those same documents are subject to discovery when they are reviewed by a testifying expert, or when they are prepared by an expert who serves as both a consultant and a testifying expert.
D. Materials Generated by Testifying Expert
Documents authored by a testifying expert are generally discoverable. Some exceptions may apply, however, when counsel participates in the drafting of the documents. Courts find the Civil Rules Advisory Committee's notes to the 1970 amendment to Rule 26 instructive when determining the discoverability of documents authored solely by the expert. One sentence states: "The new provisions of subdivision (b)(4) reject as ill-considered the decisions which have sought to bring expert information within the work product doctrine." In B.C.F. Refining, the court held that expert-generated documents that were authored by the expert were discoverable. The court cited numerous Second Circuit decisions holding work generated by experts, including draft reports and memoranda, discoverable.
Rule 26 also requires the production of various expert-generated materials other than documents. In Martin v. Intex Recreational Corp.,(11) an expert created a video-tape to demonstrate how a plaintiff might have injured herself on a playhouse manufactured by the defendant, and the federal district court ordered production. The plaintiff argued that the video lacked expert testing or investigatory information, so it should not be discoverable. But the court ordered production on the ground that Rule 26 facilitates thorough cross-examination of expert witnesses by disclosing all materials that formed the basis of the expert's opinion.
In New Mexico Tech Research Foundation v. Ciba-Geigy Corp.,(12) however, another federal district court refused to compel discovery of documents because counsel assisted in writing them, and the documents recorded the expert's conversations with counsel. The court held that the notes were opinion work product because counsel justifiably expected confidentiality when communicating his notes. The court also noted that the advisory committee's notes refer only to factual information. If the committee had intended to intrude on the attorney opinion work product doctrine, it added, then that intention would have been clearly and unambiguously stated in the rule.
Documents prepared by a testifying expert are discoverable because the documents relate specifically to the expert's testimony. However, counsel's impressions captured in the expert's documents may be protected if counsel can show participation in generating the document.
E. Materials Provided to Expert by Counsel
Most courts follow the clear language of Rule 26(a)(2)(B) and require disclosure of documents that counsel provides for the expert's review. The previous rule that allowed discovery only of documents "relied upon" by an expert has been replaced by documents that the expert "considered."
In Karn v. Rand,(13) a federal district court held that the advisory committee clearly intended a new discovery scope by rejecting the previous term "relied upon" and used the term "considered." Now, discovery simply includes all documents that were provided to and reviewed by the expert. The party requesting discovery no longer bears the burden of demonstrating that the expert actually relied on the document.(14)
Any factual information reviewed by an expert will be subject to discovery. Regardless of the extent of influence that the document have on the expert's testimony, the documents will always be available for discovery.
F. Materials Incorporating Counsel Opinion and Reviewed by Expert
The core of the Rule 26 conflict lies in the communications between counsel and expert that include not only factual information but also counsel's opinions. Courts are divided regarding what portions of these communications are discoverable.
Those that adopt the broader discovery approach are guided by the general language of Rule 26 and the policy of encouraging liberal disclosure. When it is reviewed by an expert, an otherwise privileged work product of an attorney is discoverable, they hold, whether the information is factual in nature or whether it contains counsel's mental impressions.
Other courts hold that Rule 26 did not create a new standard with respect to opinion work product. The amended rule merely reflects a procedural change to expedite discovery and is not intended to broaden the scope of discovery. Only the factual portions of communications are discoverable to protect counsel's core work product.
Rule 26(b)(3) divides attorney work product into two categories: one that is absolutely immune from discovery, and another that is only qualifiedly immune. In Musselman v. Phillips,(15) the federal district held that fact work product is discoverable on a showing of substantial need and inability to replicate the data without undue hardship. Work product incorporating mental impressions, however, is immune to the same extent as attorney-client communications when prepared in anticipation of litigation.
Regardless of the category of work product, the privilege can be waived. A growing majority of courts, including the Musselman court, hold that the privilege in fact is waived under Rule 26(a)(2)(B) when counsel provides work product to experts who consider it in forming their testimony. The privilege is waived whether the work product is merely factual or contains counsel's impressions, and the waiver represents one of the "very rare and extraordinary circumstances" when protection of opinion work product is not absolute, the Mussleman court added. Disclosure of the work product is proper because the expert possesses some unique knowledge of which the fact finder has little to no knowledge. Thorough cross-examination is necessary to evaluate the validity of an expert's opinion, as well as credibility.(16)
The Karn court also adopted a bright-line rule mandating full disclosure of all documents, including portions that contain work product, when the expert reviews the material. The court held that the drafters anticipated inconsistencies between Rules 26(b)(3) and 26(b)(4) and resolved the conflict by allowing Rule 26(a)(2) to "trump" any work product privilege. The court also stated that three policy grounds supported complete disclosure: (1) liberal discovery limits the manipulative control counsel exerts over experts; (2) it does not violate the core precepts of the work product doctrine; and (3) the bright-line rule protects work product by clearly defining the limits of the doctrine's scope.(17)
The pervasive public policy of protecting work product convinces some courts to limit discovery. In All West Pet Supply Co. v. Hill's Pet Products,(18) a federal district court reviewed two documents that plaintiff's counsel mailed to two different experts. One was a memorandum to a testifying expert, and the other was a letter to an accountant who was to perform non-testifying accounting services in preparation for trial. When the defendant requested the documents, the plaintiff claimed work product immunity because the correspondence contained opinions, theories of the case, information concerning certain documents to be collected, and assignments of case preparation responsibilities.
In applying the Rule 26, the court held that the work product privilege was not waived merely by providing the documents to the expert witnesses. The strong policy of protecting opinion work product could be overcome only by a showing substantial need for the material and an undue burden to replicate similar information.
Another federal district court held in Haworth v. Herman Miller Inc.,(19) that the scope of discovery may not be broader than the two forms of ordinary work product expressed in the first sentence of Rule 26(b)(4): "facts known and opinions held by an expert." The court concluded that discovery of counsel's mental impressions and opinions was not contemplated by the advisory committee because nothing in its notes suggests that core work product was discoverable under Rule 26(b)(4). That subsection does not outline a different standard for core work product from that in 26(b)(3), so the court reasoned that an attorney's mental impressions and opinions are protected from discovery even when delivered to experts.
Some jurisdictions that have permitted more expansive discovery justify the discovery measure as a guard against undue attorney influence over the witness, but Haworth held that cross-examination and impeachment in a patent case provide effective controls without deteriorating the work product rule.
In New Mexico Tech Research, the court adopted a facts-only discovery rule for two reasons. First, the court found no foundation in Rules 26(b)(3), 26(b)(4), or the advisory committee notes to suggest that core attorney work product was discoverable under Rule 26(b)(4). Subsection 26(b)(4) does not create a standard for core work product different from 26(b)(3), so the court reasoned that the protection granted to counsel's mental impressions and opinions is not altered from the Hickman v. Taylor standard codified in Rule 26(b)(3). Second, the court pointed out, the notes regarding expert discovery refer only to factual information. If the advisory committee had intended to intrude on attorney opinion work product, it stated, that intention would have been clearly and unambiguously stated.
The court held that a facts-only discovery protected counsel's core work product yet allowed discovery into the bases of the expert's testimony. It also stated that the risk of undue attorney influence over the expert's testimony is more properly controlled by cross-examination into the foundation of the expert's findings than by broadening the scope of discovery.
Under this approach, correspondence between counsel and expert would be discoverable only to the extent that it does not include counsel's core work product. Any impressions or opinions would be subject to redaction should other factual portions of the correspondence be discoverable. The mandatory disclosure of "data or other information considered by the witness" required under Rule 26(a)(2) is limited to the data that was used in forming the witness' opinion and does not include the attorney's opinions or other information typically protected under the work product doctrine.
G. Oral Communications
Courts typically apply the same discovery standard to oral communications as are applied to written materials. They compel discovery of documented oral conversations that were "considered" by the expert.
In B.C.F. Oil Refining, counsel's memoranda to file and handwritten notes documenting conversations with an expert were discoverable to the extent that the writings were shown to the expert. When counsel's notes were reviewed by the expert, the notes become part of the materials considered by the expert. However, documents that are used solely by counsel for his personal recollection of conversations with the expert were ruled immune from discovery because the notes were integrated into counsel's opinions and strategy, the court adopting the facts-only approach of New Mexico Tech Research.
In Haworth, opposing counsel questioned an expert about conversations he had with the hiring counsel. The court ordered the testimony but only to the extent required under the rule, stating that "Rule 26(a)(2) specifically requires disclosure of factual information considered but not relied upon, as well as the information that was considered and relied upon."(20)
H. Modified Approaches
Courts are concerned with the conflicting interests of disclosing biased expert testimony, allowing generous discovery for judicial economy, and protecting confidential trial preparation. To accommodate these competing interests, some courts have introduced a balancing test into the Rule 26 analysis.
In Rail Intermodal Specialists v. General Electric Capital Corp.,(21) counsel sent two letters to two expert witnesses, and the experts relied on the letters in forming their opinions. Opposing counsel moved for discovery of the letters to show bias and to cross-examine the witnesses regarding their opinions. Even though the letters indicated bias, the federal district court denied discovery, reasoning that it is common knowledge that experts carry the same bias as the counsel who hired them.
However, the court foresaw circumstances that would require the disclosure of work product provided to experts, so it adopted the balancing test from Intermedics Inc. v. Ventritex Inc.:(22)
[A]bsent an extraordinary showing of unfairness that goes well beyond the interest generally protected by the work product doctrine, written and oral communications from a lawyer to an expert that are related to matters about which the expert will offer testimony are discoverable, even when those communications otherwise would be deemed opinion work product.(23)
Rather than relying solely on Rule 26, the fairness test weighs the interest of protecting work product with the discovery interests of Rule 26(b)(4) and Federal Rules of Evidence 702, 703 and 705. Even in circumstances where only a limited risk of exposing work product exists, the court will not compel discovery of communications between counsel and experts unless the opposing party has a substantial need and the information is not readily available from other sources.
Another court adopted a "moderate position" between the facts-only and broad discovery approaches. In Kennedy v. Baptist Memorial Hospital--Boonville Inc.,(24) an expert sent two opinion letters to counsel, and the plaintiff requested discovery of other communications between counsel and the expert that occurred during the 24-four hour period between the two letters. The federal district court acknowledged its general rule that communications between counsel and the retained expert are not discoverable, but it compelled discovery because the expert's second opinion letter contained "more than editorial changes" after counsel's review of the first letter. The court cautioned that its holding was limited to circumstances in which counsel may have interjected themselves into the process by which experts form opinions.
Another federal district court looked strictly to the Hickman v. Taylor work product rule instead of Rule 26 when evaluating the discoverability of attorney opinion product. In Maynard v. Whirlpool Corp., the court held that not even "the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney," concluding that the view "that an attorney's work product is nearly, if not absolutely, privileged" remains undisturbed by Rule 26.(25)
Although somewhat unique in their reasoning about discovery, these opinions accent the difficulty courts have in reconciling the expanded discovery under Rule 26(a)(2) with the work product protection under Rule 26(b)(3). The decisions demonstrate that courts will engage in an almost case-by-case analysis to determine what materials will be discoverable.
Courts will almost always compel discovery of communications between counsel and expert when the communication contains merely factual information. Regardless of the relevancy or whether counsel forwarded the materials, courts will consider any factual information reviewed by an expert to be discoverable under Rule 26(a)(2). Contractual documents, however, are typically discoverable only when relevant to the proceedings.
The growing trend also permits discovery of communications that incorporate counsel's opinions. The trend interprets the work product protection of Rule 26(b)(3) to be subordinate to the discovery requirements of Rule 26(a)(2). Ironically, both views cite the "clear" language of the rule. Courts favoring liberal discovery refer to the Rule 26(a)(2) requirement to disclose information considered by the expert. Courts limiting discovery point out the lack of unambiguous language to limit the compelling policy of work product protection under Rule 26(b)(3). Absent an exigent need, counsel should avoid communicating opinion work product and litigation strategies to experts to avoid the risk of exposing otherwise protected materials to opposing counsel.
LIMITS ON EXPERT'S LEGAL OPINION TESTIMONY
The scope of permissible expert witness testimony is codified in Federal Rules of Evidence 702 and 704:
Rule 702. Testimony by Experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Rule 704. Opinion on Ultimate Issue. (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
Expert witnesses are qualified to the extent they have "specialized" knowledge in a given field as a result of "knowledge, skill, experience, training, or education," and the field of expertise is not limited to a scientific or technical background. Rule 702 permits an expert to explain a scientific or other principle, and then the trier of fact can apply the principle to the facts.
To be admissible, expert testimony must be "otherwise admissible" and it must "assist the trier of fact." As a general rule, an expert may not educate the jury regarding a principle of law,(26) or testify as to the legal effect of certain conduct.(27) But this general rule has loose boundaries as courts create individualized exceptions to assist jury factual determinations. Testimony that merely presents legal conclusions does not assist the trier of fact and, therefore, is not admissible.(28)
To what extent an expert can explain legal issues is subject to ill-defined parameters. Courts have difficulty drawing a line between inadmissible conclusions of law and admissible assistance to the trier of fact in understanding the evidence. An expert's legal conclusions may expose the jury to potentially erroneous standards and interfere with the judge's role of instructing the jury as to the proper standard.(29)
A. Principles of Law and Conclusory Opinions
Rule 704 dispenses with the previous per se prohibition against an expert's testimony regarding an ultimate issue of fact. Now, an expert may testify as to an ultimate issue, but not the ultimate issue, according to Owen v. Kerr-McGee Corp.(30) As far as the rules of evidence are concerned, deciding the ultimate factual issue in any case is reserved for the trier of fact. However, under Owen, an expert may opine regarding an issue of fact to assist the ultimate determination.
The rule does not expressly allow experts to provide legal conclusions, but the 10th Circuit held in United States v. Buchanan that an expert's testimony is not improper simply because it expresses an ultimate issue that must be decided by the jury.(31) The court must consider whether the testimony aids the jury in understanding the evidence or in determining a fact. For example, the court explained, an expert may express an opinion whether a weapon or a drug falls within a particular regulatory classification, despite the opinion's reaching an ultimate issue of fact. The court controls the expert's influence over the jury by explaining the statutory definition and instructing the jury as to the weight to be afforded the testimony.
Many circuits invoke the Rule 704 advisory committee notes to distinguish between expert testimony that is helpful to the jury and testimony that merely expresses what conclusion the jury should reach.(32) The notes state:
... Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, "Did T have capacity to make a will?" would be excluded, while the question, "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty to formulate a rational scheme of distribution?" would be allowed.(33)
Even if experts communicate the proper legal standard and do not mislead, they invade the judge's role of instructing the jury when they opine a recommended standard, the Second Circuit held in Hygh v. Jacobs.(34) The court stated that an expert may be qualified to testify because of experience, but the expert's experience is not a proper substitute for the judge's role of instructing the jury regarding the applicable law. An expert's statements that a defendant's actions were "justified under the circumstances," not "warranted under the circumstances" and "totally improper" were held inadmissible because the expert was merely telling the jury what conclusions to reach.
One difficulty in defining the boundary between impermissible questions of law and admissible questions of fact arises when the issue is governed by statute, regulations, guidelines, handbooks, advisory rulings, interpretive bulletins, or counsel's letters from a government agency.
The ultimate issue drawn by an expert must be a factual one. In a wrongful death action, Berry v. City of Detroit,(35) the Sixth Circuit permitted an expert to state that the police department's discipline was lax. But the expert could not state that the lax discipline policies showed the city's deliberate indifference to the welfare of citizens. The court pointed out that the Rule 704 drafters deliberately excluded language permitting an expert to opine regarding ultimate liability. To permit otherwise, the court said, would create a new profession of "liability experts."
The fact that an area of law is unsettled does not create an exception to the general rule. In an income tax evasion case, United States v. Curtis,(36) the defendant argued that she could not have willfully evaded the reporting of her income because the sale of her blood presented a novel and uncertain question of law. But the Sixth Circuit prevented her expert from testifying because the issue of taxability and legal uncertainty were matters of law for the court to decide. It found no error in excluding the expert testimony and upheld the conviction because (1) using uncertainty in the law as a defense to willful violations is improper, (2) expert testimony is intended to assist the jury in understanding the evidence or in determining a factual issue, and (3) using experts to explain legal standards would confuse the jury with conflicting testimony.
Courts do allow flexibility when the expert provides testimony both as a fact witness and as an expert witness, thereby providing a mixture of fact and law. In Allison v. Ticor Title Insurance Co.,(37) an expert testified regarding the "signing off" process of a purchase agreement, and the defendant complained that the testimony expressed an opinion regarding the contractual rights and legal effect of the agreement. The Seventh Circuit held that the process of drafting the agreement was a necessary factual determination, and the testimony could not be excluded merely because it addressed a potential legal conclusion. The testimony related more to issues of fact than to issues of law, the court stated.
B. Hypothetical Questions
Hypothetical questions are used to allow an expert to provide an opinion concerning the opposing party's conduct. The hypothetical question allows the expert to express a legal conclusion regarding a fact situation that is similar to the subject matter of the litigation. However, the risk of error is incurred when the hypothetical is too similar to the opposing party's conduct.
For example, in United States v. Smart,(38) a drug expert answered hypothetical questions that were identical to the defendant's conduct, and the expert testified that all the elements of the offense were satisfied, including intent. The defense claimed that the expert testified in violation of Rule 704(b) and that the "hypothetical" defendant possessed illicit drugs with the intent to distribute rather than possession for personal use. The D.C. Circuit court adopted the Seventh Circuit standard that applies when a police expert testifies. Under this test, the court must make certain that the expert's opinion is based on his knowledge of common criminal practices and not on knowledge of the defendant's specific acts.
The propriety of hypothetical questions is also a product of which attorney introduces the questions. When one defendant objected to a prosecutor's expert testimony explaining proper securities filing requirements, the Second Circuit in United States v. Bilzerian(39) found no error when the expert answered hypothetical questions. The court noted that the questions were introduced by the defendant on cross-examination, and the defense had not objected to the expert's general testimony.
C. Definitions of Legal Terms
Ambiguity also exists between admissible assistance and improper conclusions of law when an expert uses legal terms. The Sixth Circuit applied a two-part test in Torres v. County of Oakland when evaluating whether an expert's testimony improperly addresses conclusions of law.(40) First, does the expert's testimony track the exact language of the statute at issue? Second, does the term used by the expert have a specialized legal definition different from the term's ordinary meaning? If the terms have specialized meaning in the law, then excluding the testimony is proper.
Torres held that "discrimination" has a unique meaning in the law and a meaning that differs from a layman's less precise meaning. The court further concluded that the expert could assist the jury with similar information without using the exact conclusory terminology of the statute. For example, the expert could have testified whether the plaintiff's national origin motivated the employer's hiring decision, but the expert could not state that the employer discriminated against the defendant.
Similarly, in Strong v. E.I. Dupont de Nemours & Co.,(41) the Eighth Circuit held that the expert could not testify that a manufacturer's warnings were "inadequate" or that the product was "unreasonably dangerous." The expert may offer opinions as to whether the facts would support a conclusion that the legal standard had been satisfied but cannot testify that the legal standard has been met. The distinction is subtle but significant. The ultimate conclusion that the facts satisfies the legal standard is a jury determination.
When experts use terms of art in their non-legal sense, the court will not find error. Experts can use legal words, such as "fraud" and "deceit," provided they are used in the context of their common, ordinary meaning.(42) Similarly, a lay witness can use a legal term such as "agreement to fix prices" when the term has a well-established lay meaning independent of its legal definitions.(43)
An expert's use of legal terms by directly relying on the statutory and regulatory language is suspect. When determining whether an expert could use "self-defining" terms that also have distinct legal definitions, such as "fraud" and "manipulation," the Second Circuit in United States v. Scop, found error in the expert's continuous use of statutory language indicating guilt.(44) The court distinguished prior cases in which it had allowed the expert to use uniquely defined terms because the expert explained the term's meaning independently of comparison to the defendant's conduct. For example, a drug enforcement expert explained a typical chain of heroin distribution, including a description of a "mill," and then testified that the defendant's apartment contained evidence of what the expert would typically find at a "mill."
The objectionable testimony involves the expert's conclusory statement that the defendant "aided and abetted the possession of heroin, with the intent to sell," rather than the statement that the defendant's conduct was similar to the conduct of aiding and abetting. It is the province of the jury, not the expert, the court stated, to draw conclusions as to whether the defendant's conduct fitted the criminal profile.
In a civil action, Harbor Insurance Co. v. Continental Bank,(45) an insurance claimant argued two errors in allowing an attorney for the insurer to provide a definition of "indemnity," but the Seventh Circuit held that the testimony was proper because the contract was ambiguous. However, the court went on to hold that the insured was denied the legal protection against an ambiguously drafted policy. The attorney based his definition of "indemnity" on judicial opinions and not on insurance contracts. Under Illinois law, the court pointed out, courts interpret ambiguities in insurance contracts against the insurer. When the trial court permitted the attorney to testify, it implicitly instructed the jury to look to the expert for legal guidance. By doing so, it improperly swung the burden of providing an unambiguous interpretation away from the insurer and to the insured.
D. Specialized Aspects of Law
Courts permit experts to state narrow conclusions of law when the issue involves a statute or a provision that is specialized to a particular industry, but they will exclude legal interpretations that provide more than incidental assistance to the court in understanding that particular technical area of the law.(46)
For example, in a patent infringement action, the Federal Circuit approved allowing an expert to explain a technical area of the law and to provide an opinion regarding the question of infringement.(47) The court found no error because sufficient evidence was presented, including the expert's conclusion on infringement, to support the jury's verdict. In a patent infringement action, the jury may consider the expert's legal conclusions when determining whether substantial evidence exists to show infringement.(48)
Courts also will entertain an expert's testimony on foreign law. Typically, the judge will secure the expert's advice in the jury's absence and then instruct the jury regarding the application of the foreign law. But when the legal issues before the court are "routine" and are not complex, the court and the jury are not assisted by an expert's discourse regarding the legal rule.(49)
The Second Circuit found no error in Bilzerian in allowing a securities expert to provide "background information" concerning a Schedule 13D filing. The trial court allowed the expert to provide meanings of terms and explanations of procedures, as well as his opinion regarding the reason for the procedures. The judge controlled the expert's testimony by instructing the jury to use the Schedule 13D instructions as the proper standard and requested the expert to clarify ambiguities in the instructions. The judge also gave limiting instructions to the jury that the expert's opinions were merely background information and were not the expert's opinion as to what the law requires. The expert's opinion allowed the jury to compare the defendant's conduct only with respect to industry practices and not to the proper legal standard.
In another case, the Second Circuit allowed a securities expert to define an option contract but not to conclude whether one party breached the agreement.(50)
Trial judges also are responsible for interpreting federal standards for the jury in product liability actions. Rather than define the proper standard for the jury, in Bammerlin v. Navistar International Transportation Co.,(51) the trial judge erroneously allowed the jury to define which standard should be applied after hearing both parties' expert witnesses interpret the regulations. Regulatory interpretation is always a question of law for the court to define, the Seventh Circuit explained, and therefore the trial court should have defined which standard was applicable and then allowed the expert witnesses to testify regarding that standard.
An expert's testimony is not admissible when the testimony merely provides a legal argument rather than factual conclusions. In Snap-Drape Inc. v. Commissioner,(52) two certified public accountants' reports concluded that certain dividends were deductible for the purposes of computing adjusted current earnings. The Fifth Circuit stated that the Tax Court properly held that the reports were not factual conclusions but rather legal arguments and were submitted purely for advocacy purposes.
Using a bankruptcy judge as an expert witness drew considerable criticism from the Sixth Circuit in United States v. Zipkin.(53) The use of a judge to explain the law is not only unnecessary but highly prejudicial, the court stated. The testimony was superfluous because the trial judge is responsible for instructing the jury regarding the law and permitting the judge to testify improperly delegated the trial judge's instructions regarding the law to the testifying judge.
Courts also are concerned with the use of attorneys as experts, although not to the same degree as in the case of a judge. In Specht v. Jensen,(54) the 10th Circuit noted that two potential problems arise. The jury is more prone to accept an attorney-witness's interpretation of the law rather than the judge's instructions, despite the court's limiting instructions. Conflicting expert testimony by opposing parties on a given area of the law, as well as by the court's instructions, will confuse the jury, the court stated, adding that attorney-witness testimony should be restricted to narrowly defined factual issues, such as whether a weapon should be registered, or whether a prospectus uses standard industry language.
E. Review for Error
Even if improper expert testimony is admitted at trial, there might not be a reversal. When reviewing alleged improper testimony objected to at trial, appellate courts must determine whether the error had "a substantial or injurious effect or influence in determining the jury's verdict" and will evaluate the severity of the error and the trial record as a whole. The D.C. Circuit upheld the conviction in Smart because of the totality and lack of ambiguity of the evidence rendered the Rule 704(b) violation harmless.(55)
Appellate courts apply an abuse of discretion review and will reverse only on a clear showing of abuse and "substantial influence" on the jury's verdict. In Peterson v. City of Plymouth,(56) a police expert testified that police officers' actions were within acceptable standards and opined that their conduct met Fourth Amendment standards. The Eighth Circuit found error to the point of reversal because the expert's testimony focused the jury on the wrong question. Rather than evaluating whether the police officers had probable cause to arrest the defendant, the jury was told that the officers' conduct was reasonable.
The significance of the expert's improper testimony was somewhat diminished, however, because the Eighth Circuit ordered a new trial after finding multiple errors associated with the expert, the trial judge's comments during the testimony, and a verdict form that asked the incorrect question of law.
A reviewing court can find harmless error when the expert's improper testimony is embedded in otherwise unobjectionable testimony in which the jury could have reached the same conclusions as the expert. When the rest of testimony is unobjectionable and the evidence taken as a whole is strong, the error of permitting the improper testimony will be harmless.(57)
When a party fails to object to questionable testimony in a criminal trial, the reviewing court applies a "plain error" review, as the D.C. Circuit did in Smart. When an expert opined in United States v. Newman that the defendant illegally brokered a real estate sale, the First Circuit refused to find error because the defense did not object at trial. The statement was made in the "ordinary course of describing certain events and discussions surrounding" the alleged illegal acts, and therefore the testimony did not rise to the level of plain error in the absence of an objection.(58)
Reviewing courts also may find an error insufficiently harmful to reverse, but if the case were retried on other grounds, the court would prohibit an expert's opinion. In Dinco v. Dylex Inc., in which an expert testified that the plaintiffs reasonably relied on statements made by the defendant, the First Circuit held that the expert should have restricted his comments to ordinary corporate practice.(59) The court vacated the verdict on other grounds with instructions governing the expert's testimony if the case were retried.
The use of expert witnesses has increased significantly in recent years, but their effectiveness does not come without limits. Liberalized discovery rules may force the production of documents and communications that are transmitted to an expert. An attorney's reliance on the work product doctrine may be ill-founded when defending a discovery request of certain trial materials provided to an expert.
Counsel may weaken their trial strategy by the reliance on expert testimony of certain legal issues. Expert opinions that venture towards conclusory opinions of ultimate issues of fact or towards legal issues are potential grounds for error.
(1.) See generally Lee W. Miller, Special Topics in the Law of Evidence: Cross-examination of Witnesses: Dispelling the Aura of Reliability, 42 U. MIAMI L. REV. 1073 (1988); Michael H. Graham, Expert Witness Testimony and the Federal Rules of Evidence: Insuring Adequate Assurance of Trustworthiness, 1986 U. ILL. L. REV. 43 (1986).
(2.) See generally Faust F. Rossi, Modern Evidence and the Expert Witness, 12 LITIG. 18 (Fall 1985).
(3.) 329 U.S. 495 (1947). See John F. Wagner, Annotation, Protection from Discovery of Attorney's Opinion Work Product under Rule 26(b)(3), Federal Rules of Civil Procedure, 84 A.L.R. FED. 779 (1987).
(4.) Compare, e.g., Haworth Inc. v. Herman Miller Inc., 162 F.R.D. 289 (W.D. Mich. 1995) (protecting core attorney work product from discovery) with Karn v. Rand, 168 F.R.D. 633 (N.D. Ind. 1996) (holding that work product privilege does not protect documents considered by expert).
(5.) Caruso v. Coleman Co., 157 F.R.D. 344, 347 (E.D. Pa. 1994) (granting discovery of pre-accident and post-accident testing information in products liability action).
(6.) 1994 U.S. Dist. Lexis 21092 (S.D. Fla. 1994).
(7.) 171 F.R.D. 57 (S.D.N.Y. 1997).
(8.) Id. at 61. See also Beverage Mktg. v. Ogilvy & Mather Dist. Response Inc., 563 F.Supp. 1013 (S.D.N.Y. 1983).
(9.) Furniture World Inc. v. D.A.V. Thrift Stores Inc., 168 F.R.D. 61, 63 (N.M. 1996). See also Wreath v. United States, 161 F.R.D. 448 (Kan. 1995) (treating physician who provided testimony beyond facts of treatment subject to expert witness reporting requirements of Rule 26(a)(2)(B)).
(10.) United States v. City of Torrance, 163 F.R.D. 590, 593 (C.D. Cal. 1995).
(11.) 1994 U.S. Dist. Lexis 15483 (Kan. 1994).
(12.) 37 Fed.R.Serv.3d 971, 1997 WL 57389 (R.I. 1997).
(13.) 168 F.R.D. 633,635 (N.D. Ind. 1996).
(14.) Georgou v. Fritzshall, 1996 U.S. Dist. Lexis 1823 (N.D. Ill. 1996) (broader discovery valid because advisory Committee notes state materials used in forming expert's opinion are discoverable whether or not ultimately relied upon by expert). See also Haworth, 162 F.R.D. at 293 (reliance by expert unnecessary for discovery request; all documents considered by expert are discoverable except portions containing counsel's mental impressions); City of Torrance, 163 F.R.D. at 593 (discovery of all documents considered by expert necessary to assure independence of expert's opinion; rejected documents could be more important to cross-examination than documents actually relied upon).
(15.) 176 F.R.D. 194, 196 (Md. 1997), citing Better Gov't Bureau Inc. v. McGraw, 106 F.3d 582, 607 (4th Cir. 1997).
(16.) Musselman, 176 F.R.D. at 199-200. See also Barna v. United States, 1997 WL 417847 (N.D. Ill. 1997) (Rule 26(a)(2) creates bright-line test that any materials provided to expert are not privileged); Fed. Deposit Ins. Corp. v. Gonzalez-Gorrondona, 1994 U.S. Dist. Lexis 21092 (S.D. Fla. 1994) (discovery of communications prevents undue burden on opposing counsel without violating principle behind the work product doctrine).
(17.) 168 F.R.D. at 639-40. See also B.C.F. Oil Refining, 171 F.R.D. at 66 (following Karn and holding that work product protection of Rule 26(b)(3) has always been subject to discovery requirements of Rule 26(b)(4)); Torrance, 163 F.R.D. at 593 (complete disclosure assures independent expert testimony and prevents attorney from "thinking" for expert).
(18.) 152 F.R.D. 634 (D. Kan. 1993).
(19.) 162 F.R.D. 289, 293-95 (W.D. Mich. 1995). See also Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 642 (E.D. N.Y. 1997) (Rule 26(a)(2)(B) only extends to factual materials and not to core attorney work product).
(20.) 162 F.R.D. at 296 (court's emphasis). See also Furniture World, 168 F.R.D. at 63 (compelling expert witness to answer interrogatories regarding conversation with counsel relating to expert's testimony).
(21.) 154 F.R.D. 218 (N.D. Iowa 1994).
(22.) 139 F.R.D. 384 (N.D. Cal. 1991).
(23.) 154 F.R.D. at 220, quoting Intermedics, 139 F.R.D. at 387.
(24.) 179 F.R.D. 520 (N.D. Miss. 1998).
(25.) 160 F.R.D. 85 (S.D. W.Va. 1995. See also Blakey v. Continental Airlines Inc., 1995 WL 464477 (N.J. 1995) (counsel's letter to handwriting expert protected under Hickman v. Taylor work product rule because it was written in anticipation of litigation).
(26.) Nieves-Villanueva v. Soto-Rivera, 113 F.3d 92, 98 (1st Cir. 1997).
(27.) Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990).
(28.) Burkhardt v. Washington Metro. Area Transit Auth., 112 F.3d 1207 (D.C. Cir. 1997).
(29.) Torres v. County of Oakland, 785 F.2d 147 (6th Cir. 1985).
(30.) 698 F.2d 236, 239 (5th Cir. 1983).
(31.) 787 F.2d 477,483-84 (10th Cir. 1986).
(32.) Hygh v. Jacobs, 961 F.2d 359, 362 (2d Cir. 1992).
(33.) FED. R. EVID. 704, advisory committee's note, reprinted in FEDERAL CIVIL JUDICIAL PROCEDURE AND RULES 395 (1999 ed.).
(34.) 961 F.2d 359, 364 (2d Cir. 1992). See also Aguilar v. Int'l Longshoremen's Union Local No. 10, 966 F.2d 443, 447 (9th Cir. 1992) (findings of reasonableness and foreseeability were matters of law for court' s determination, not expert's).
(35.) 25 F.3d 1342, 1353-54 (6th Cir. 1994).
(36.) 782 F.2d 593, 599 (6th Cir. 1985).
(37.) 979 F.2d 1187, 1195 (7th Cir. 1992).
(38.) 98 F.3d 1379, 1385, 1388 (D.C. Cir. 1996).
(39.) 926 F.2d 1285, 1294 (2d Cir. 1991).
(40.) 785 F.2d 147, 150 (6th Cir. 1985).
(41.) 667 F.2d 682, 685-86 (8th Cir. 1981).
(42.) In re Air Crash Disaster, 37 F.3d 804, 826 (2d Cir. 1994).
(43.) United States v. Misle Business & Equip. Co., 967 F.2d 1227, 1234 (8th Cir. 1992).
(44.) 846 F.2d 135, 141-422 (2d Cir. 1988).
(45.) 922 F.2d 357, 365 (7th Cir. 1990).
(46.) Stearns Co. v. United States, 34 Fed. Cl. 264, 268 (1995).
(47.) Snellman v. Ricoh Co., 862 F.2d 283, 287 (Fed. Cir. 1988).
(48.) McGill Inc. v. John Zink Co., 736 F.2d 666, 675 (Fed. Cir. 1984).
(49.) Nieves, 113 F.3d at 98-100.
(50.) Marx & Co. v. Diner's Club, 550 F.2d 505, 512 (2d Cir. 1977).
(51.) 30 F.3d 898, 900 (7th Cir. 1994).
(52.) 98 F.3d 194, 197-98 (5th Cir. 1996).
(53.) 729 F.2d 384, 387 (6th Cir. 1984).
(54.) 853 F.2d 805, 808 (10th Cir. 1988).
(55.) Smart, 853 F.2d at 1389, quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993),
(56.) 60 F.3d 469, 475 (8th Cir. 1995).
(57.) Burkhardt, 112 F.3d at 1214.
(58.) 49 F.3d 1, 6 (1st Cir. 1995).
(59.) 111 F.3d 964, 973 (1st Cir. 1997), citing United States v. Duncan, 42 F.3d 97 (2d Cir. 1994)).
Robert D. Fleming is a 1999 graduate of the Cumberland Law School, Samford University, and is at Burch Porter & Johnson in Memphis. He holds B.A. (1982) and M.A. (1983) degrees from Baylor University and was involved in contract negotiation and management prior to attending law school.
This is a condensed and revised version of the paper with which he won third place in the 1999 IADC Legal Writing Contest.3…
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Publication information: Article title: Hazards of Expert Witnesses: Disclosing Work Product and Limiting Testimony. Contributors: Fleming, Robert D. - Author. Journal title: Defense Counsel Journal. Volume: 66. Issue: 4 Publication date: October 1999. Page number: 538. © 1999 International Association of Defense Counsels. COPYRIGHT 1999 Gale Group.
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