The Use and Abuse of Expert Witnesses

Evidentiary rules and recent cases give little help in identifying what kind of evidence a jury must be able to understand without expert testimony. Thus, a modern comparative framework is needed to set forth practical guidelines governing admissibility of expert testimony.

By Patrick W. Brennan

Misleading expert testimony has been called "a plague in contemporary litigation." ¹ Both plaintiff and defense attorneys have succumbed to the belief that experts are needed to explain the most mundane type of case. Even in cases legitimately calling for expert testimony, witnesses have testified beyond what is permissible by federal and state evidence rules.

Expert testimony must bear a genuine connection to actual expertise in dealing with the real facts of record.

Experts are essential in matters that require scientific or technical knowledge, but evidence rules do not allow expert testimony if the subject is understandable by the average person. When is an issue one that the jury can decide on its own? The answer is vital because it is the key for limiting expert testimony.

While the federal trial courts' gatekeeping function in admitting or denying expert testimony was enhanced by the U.S. Supreme Court's 1993 Daubert v. Merrell Dow Pharm. decision, ² Daubert gives little help in identifying what kind of evidence the jury must be able to understand without expert testimony. Wisconsin appellate courts, despite concern over "evidentiary pitfalls and ... undue reliance on expert witnesses," remain committed to a standard that allows a more limited and indirect gatekeeping role. ³ Federal Rule of Evidence 702 and Chapter 907 of the Wisconsin Statutes generally control resolving these issues, but a modern comparative framework is needed to set forth practical guidelines governing admissibility of expert testimony.

Experts may not testify about what the law is or should be

A common issue in many cases is how statutes, codes or regulations apply to the facts. In Uebele v. Oehmsen Plastic Greenhouse Manufacturing, which involved a defective greenhouse, the court ruled that the expert could not testify that a certain code did not apply. ⁴ Similarly, the supreme court has held that it was error to allow expert testimony about a zoning ordinance because an expert cannot testify about what the law is on the facts in evidence. ⁵ In addition, federal appellate courts have repeatedly warned trial judges to disallow any testimony that usurps the court's role to determine the law. ⁶

A variety of Wisconsin cases, however, has allowed expert testimony to explain the meaning and practical application of applicable laws or rules. ⁷ Since there is no way to reconcile these decisions, the better practice is to let the trial court decide legal issues.

Experts may not testify about ultimate facts

It is not proper to elicit testimony from an expert that calls for a pronouncement on such issues as due care, causation or responsibility. ⁸ Objections rest not on the witness's qualifications, but on the ability of any witness to in effect argue to the jury or advocate a position. The trial judge will deem such testimony as"not helpful" to the jury and therefore excludable.

Experts also have been barred from testifying about contract interpretation, such as how one should have answered specific questions on an insurance application or what legal significance attaches to the signing of various papers - to do so would involve interpreting other testimony. ⁹ Expert testimony cannot be received in these circumstances, even if the expert knows more about the subject than anyone else.

One type of expert testimony that is subject to abuse is that offered by accident reconstruction witnesses, some of whom merely read depositions and give opinions about ultimate issues. Litigants often place great emphasis on the opinions and discovery of these experts, as if they have something more to say than the occurrence witness who can testify about facts. Frequently, testimony from accident reconstruction witnesses can be stricken on the basis it is superfluous or on a subject not suitable for expert opinion. ¹⁰

In Rosado v. Deters, an expert was barred because he could not independently establish the necessary physical and mathematical basis for his opinion that one vehicle caused the accident. ¹¹ Similarly, in Roback v. V.I.P. Transport, an expert's testimony was barred because his opinion had to depend upon how long the defendant's eyes were likely diverted from the road ¹² - an unprovable predicate.

Other courts have limited expert testimony when the jury can reach its own conclusions, as when sufficient eyewitnesses are available. ¹³ Although the rules in these cases seem contrary to section 907.04, which allows testimony about ultimate facts, it is essential to understand just what ultimate fact is at issue. If a question in effect elicits an opinion about how the verdict should read, the question is improper; both questioner and witness must be careful to steer clear of expounding on facts that are covered in the jury instructions. ¹⁴ Mere conclusions not based upon evidentiary facts are insufficient even if made by a qualified expert. ¹⁵ In practice, however, phrasing the question just right can be difficult, leaving a crucial role to the trial court to discern whether the inquiry goes beyond permissible boundaries. ¹⁶

Experts must not testify about credibility

Nobody - not even a psychologist with impeccable qualifications - may testify in court about the veracity of a particular witness. ¹⁷ For example, a clinical psychologist's testimony that a motorist had antisocial behavior disorder was excluded in Bastow v. General Motors Corp.¹⁸

Even if counsel strenuously argues that the expert is not supporting the witness's credibility, the court should look beyond this posturing. When a psychologist attempted to testify in an abuse case about the credibility of children, the testimony was disallowed because it served to "improperly buttress" the child's credibility. ¹⁹ A doctor in Wescott v. Crinklaw described how persons suffering from post-traumatic stress syndrome often make inaccurate, misleading and incomplete statements. The court held such testimony should be excluded as it was not necessary to assist the jury; the testimony was nothing but a "thinly veiled way of stating that the [plaintiff] was telling the truth." ²⁰

An historically recognized exception to the rule prohibiting testimony about witnesses credibility is a physician's ability to testify about a patient's symptoms. ²¹ In State v. Jensen a properly qualified expert was permitted to testify that the subject's behavior was consistent or inconsistent with objectively verifiable phenomenon, ²² but expert testimony about the "psychological profile" of a sex offender also has been admitted. ²³ It is difficult to discern a principled difference between these decisions.

Experts should be qualified on the precise issue involved

Numerous courts have scrutinized an expert's qualifications to ensure a match with the issue about which the expert seeks to testify. In O'Connor v. Commonwealth Edison the court noticed that the treating physician's claims of medical causation were not supported by the authors of medical texts upon which he relied, nor by any personal study or experiments, nor any other apparent scientific basis. ²⁴ Therefore the Seventh Circuit disallowed the physician's testimony. The Seventh Circuit is strict in requiring that experts "adhere to the same standards of intellectual rigor that are demanded in their professional work," ²⁵ a standard that presupposes the expert actually works in the field in which he or she testifies.

One preliminary line of inquiry is simply to ask the witness what expertise he or she brings to the case. If the witness cannot answer the question without constant reference to catch phrases about generalized study or experience, the witness probably has nothing more to offer than what is understandable in the jury's collective wisdom.

And why should such a witness be allowed? Had the witness been honest the testimony would have been prevented by Boehck Construction Equip. Corp. v. O'Brien, in which an "expert" admitted he was not expert; his testimony was not allowed. ²⁶The rules from these cases are a variant of others that illustrate an important theme: Expert testimony must bear a genuine connection to actual expertise in dealing with the real facts of record.

Experts' opinions must be based upon the record and supported by data and reasons

An expert's opinion must be grounded on foundational facts. A verdict cannot stand on expert opinion that in turn was based upon unestablished assumptions.²⁷ Courts are especially careful in scrutinizing expert testimony in damages cases that involve figures and amounts that carry a delusive impression of exactness. ²⁸ Similar dangers exist when earnings are projected in wrongful death cases. A proper foundation must be laid to establish probable future work opportunities. ²⁹

Two Wisconsin cases, Glassey v. Continental Insurance and Patterman v. Patterman, portray the outer boundaries of what facts an expert might supply in a case. If the court determines that no one has or can supply a necessary, causal variable then even the expert testimony is not allowed. ³⁰Both decisions can be read as a more skeptical view of when testimony that is unsupported by facts may be received. An expert opinion based upon speculation or conjecture must be stricken; and the testimony is not admissible if the court concludes that an opinion grounded upon certain facts simply cannot be grounded upon those facts. ³¹ The difficulty with admissibility may be due either to missing factual data that any lay witness could supply or the inability of any expert to answer an esoteric, difficult issue.

Federal courts are notably suspect of experts who fill in the facts, especially when doing so departs from standards recognized in the expert's professional field. The trial court's check on an expert going too far was referred to in Frymire-Brinati v. KPMG Peat Marwick as a "preliminary assessment." ³² The Seventh Circuit in Wilson v. City of Chicago barred a pathologist from testifying about the physiology of torture based upon no showing of genuine knowledge. A Wisconsin court also barred expert testimony due to lack of genuine knowledge in Wojciuk v. U.S. Rubber Co., a case involving the design and manufacture of tires. ³³ If the variables are too many for reasoned, probable expert testimony then the testimony should be barred.

Expert testimony may be unnecessary

A recent case arose out of summary judgment granted to an elevator manufacturer that was sued by a man who was injured at a hospital when he received an electric shock upon pressing the call button. ³⁴ In Krueger v. Otis Elevator the court noted that plaintiff's burden in such a case may be satisfied by a layperson's common knowledge or by expert testimony, since it is only necessary to have expert testimony "where the question of negligence rests on facts or principles that are extremely difficult to comprehend, as where the event or instrumentality is complex or involves sophisticated knowledge."

Two other cases also are instructive on courts' tendency to pull away from the need for expert witnesses. ³⁵ Both courts in Weiss v. United Fire & Casualty and DeChant v. Monarch Life Insurance determined that expert testimony was not required in a bad faith case. Similarly, courts have determined that experts have nothing much to say about a simple slip and fall case, snowplowing procedures or how a bull should be restrained. ³⁶ In Nolop v. Skemp a civil engineer also was not allowed to interpret highway photographs when the jury could do so just as easily. ³⁷ In fact, any matter that is within the sensory perception of an ordinary person does not need expert testimony, ³⁸ and the courts should proactively use this reasoning to bar experts outright more often.

Even those cases commonly thought of as needing expert testimony may not after all. For example, experts are needed to prove a seat-belt defense, but not in a case of simple ejection such as in Wingad v. John Deere & Co. ³⁹ A professional negligence case - depending upon the issue involved - also may not necessarily need expert testimony, so said the court in Jaeger v. Henningson, Durham & Richardson. ⁴⁰ In addition, depending upon the character of the injury, pain and suffering may not depend upon expert support.⁴¹

Some courts, such as the Tenth Circuit in Compton v. Subaru of America, state that the more stringent Daubert rule does not apply if the subject of expert testimony is mundane or not based upon a branch of hard science. ⁴² Other decisions have applied the new standard to the social sciences, civil rights cases and the broad gamut of issues commonly encountered in products liability cases. ⁴³ One observer recently said:

"The most valuable approach to expert testimony, however, is for the trial judge to greet with skepticism any claim that social science can tell a jury much about why something happened. Very little such testimony tells the jury much that it does not know from common experience."⁴⁴

That observer's view has moorings in long-standing Wisconsin law: When the jury is able to draw its own conclusions the admission of expert opinion is "not only unnecessary but improper." ⁴⁵

Expert witnesses - as opposed to fact witnesses - should not be thought of as essential or important witnesses in many instances. Occurrence experts, those with expertise and familiarity with the occurrence, often are more persuasive witnesses than are expert witnesses. ⁴⁶ Testimony from these and other fact witnesses, from the nurse in the emergency room to the company accountant or foreperson at the job site, can be quite compelling at trial.

Conclusion

The admissibility of expert testimony can be challenged by motion practice, offers of proof or by voir dire of the witness. Under either the federal Daubert standard or the Wisconsin relevancy rule, the foundation and scope of proper expert testimony can be better examined after understanding the proper limitations on expert testimony.

Patrick W. Brennan, Marquette 1981, is a shareholder in the firm of Crivello, Carlson, Mentkowski & Steeves S.C., Milwaukee.

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Endnotes

¹ Midstate Fertilizer Co. v. Exch. Nat'l Bank of Chicago, 877 F.2d 1333, 1339-40 (7th Cir. 1989).

² Daubert v. Merrell Dow Pharm., 113 S. Ct. 2786 (1993); Blinka, Scientific Evidence in Wisconsin After Daubert, 66 Wis. Law. 10 (Nov. 1993); Sorenson v. Shaklee Corp., 31 F.3d 638, 647 (8th Cir. 1994); Reideinger, They Blinded Me With Science!, ABA J. 28 (Sept. 1996).

³ State v. Walstad, 119 Wis. 2d 483, 519 n. 13, 351 N.W.2d 469 (1984); State v. Peters, 192 Wis. 2d 674, 688, 534 N.W.2d 867 (Ct. App. 1995).

⁴Uebele v. Oehmsen Plastic Greenhouse Mfg. Inc., 125 Wis. 2d 431, 436, 373 N.W.2d 456, 459 (1985).

⁵ State ex rel. Morehouse v. Hunt, 235 Wis. 358, 366 (1940); Meyer v. Fidelity Sav., 944 F.2d 562, 577 (9th Cir. 1991); and Crow Tribe of Indians v. Racicot, 87 F.3d 1039, 1045 (9th Cir. 1996).

⁶ Meyer v. Fidelity Sav., 944 F.2d 562, 577 (9th Cir. 1991).

⁷ James v. Heintz, 165 Wis. 2d 572, 578-79, 478 N.W.2d 31 (Ct. App. 1991) (whether federal truck lighting regulations applied); State v. Eichman, 155 Wis. 2d 552, 568-69, 456 N.W.2d 143 (1990) (practical application of criminal statutes on sexual exploitation by therapist). Also see Note, Expert Legal Testimony, 97 Harv. L. Rev. 797 (Jan. 1984).

⁸ Anthuber v. Integrity Mut. Ins. Co., No. 95-1397, filed 4/16/96 (unpublished); Lievrow v. Roth, 157 Wis. 2d 332, 352, 459 N.W.2d 850, 857 (Ct. App. 1990); Kostelecky v. NL ACME Tool, 837 F.2d 828, 830-31 (8th Cir. 1988); Minasian v. Standard Chartered Bank PLC, 109 F.3d 1212, 1216 (7th Cir. 1997).

⁹ Kreklow v. Miller, 37 Wis. 2d 12, 22, 154 N.W.2d 243 (1967); Loeb v. Hammond, 407 F.2d 779, 781 (7th Cir. 1969); United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994); and Yannacopoulous v. General Dynamics Corp., 75 F.3d 1298 (8th Cir. 1996), in which the ultimate opinion of a lawyer that a contract had existed was barred, although other evidence about negotiations was allowed; CMI-Trading Inc. v. Quantum Air Inc., 98 F.3d 887, 890 (6th Cir. 1996).

¹⁰ State v. Peters, at 689; CMI-Trading Inc. v. Quantum Air Inc., 98 F.3d 887, 890 (6th Cir. 1996).

¹¹ Rosado v. Deters, 5 F.3d 119, 124 (5th Cir. 1993).

¹² Roback v. V.I.P. Transport, 90 F.3d 1207, 1215 (7th Cir. 1996).

¹³ Valiga v. Nat'l Food Co., 58 Wis. 2d 232, 251, 206 N.W.2d 377 (1973); Watkins v. Schmitt, 665 N.E.2d 1395 (Ill. 1996); United States v. Rincon, 28 F.3d 921 (9th Cir. 1994); State v. Wilson, 179 Wis. 2d 660, 678, 508 N.W.2d 44 (Ct. App. 1993).

¹⁴ Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983); Lievrow v. Roth, 157 Wis. 2d 332, 351-52, 459 N.W.2d 850 (Ct. App. 1990); Casson v. Schoenfeld, 166 Wis. 401, 166 N.W. 23 (1918); Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994).

¹⁵ Snider v. Northern States Power Co., 81 Wis. 2d 224, 231, 260 N.W.2d 260 (1977); Dean Medical Center S.C. v. Frye, 149 Wis. 2d 727, 439 N.W.2d 633 (Ct. App. 1989); Mueller v. Luther, 31 Wis. 2d 220, 142 N.W.2d 848 (1968).

¹⁶ Wigmore on Evidence, §12, p. 49, n.15 (4th Ed. 1992).

¹⁷ State v. Jensen, 147 Wis. 2d 240, 249, 250, 432 N.W.2d 913 (1988); State v. Hazeltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984); State v. Bednarz, 179 Wis. 2d 460, 507 N.W.2d 168 (Ct. App. 1993); State v. Pittman, 174 Wis. 2d 255, 267, 270, 496 N.W.2d 74 (1993).

¹⁸ Bastow v. General Motors Corp., 844 F.2d 506 (8th Cir. 1988). Also see State v. Blair, 164 Wis. 2d 64, 74, 473 N.W.2d 566 (Ct. App. 1991), which upheld the barring of an expert on memory and eyewitnesses.

¹⁹ United States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985).

²⁰ See Wescott v. Crinklaw, 68 F.3d 1073, 1077 n.2 (8th Cir. 1995).

²¹ Quaife v. Chicago & N.W. R.R. Co., 48 Wis. 513, 4 N.W. 658 (1880).

²² Compare State v. Jensen, 147 Wis. 2d 240, 256, 432 N.W.2d 913 (1988), with Gier By and Through Gier v. Educ. Serv. Unit, 66 F.3d 940, 943 (8th Cir. 1995).

²³ State v. Friedrich, 135 Wis. 2d 1, 16, 398 N.W.2d 763 (1987); State v. Richardson, 189 Wis. 2d 418, 426-31, 525 N.W.2d 378 (Ct. App. 1994); State v. DeSantis, 155 Wis. 2d 774, 794, 456 N.W.2d 600 (1990).

²⁴ O'Connor v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir. 1994).

²⁵ Braun v. Lorillard, 84 F.3d 230, 234 (7th Cir. 1996); Tyus v. Urban Search Management, 102 F.3d 256, 263 (7th Cir. 1996); Black v. Gen'l Elec. Co., 89 Wis. 2d 195, 212, 278 N.W.2d 224 (Ct. App. 1979).

²⁶ Boehck Constr. Equip. Corp. v. O'Brien, 29 Wis. 2d 649, 653 (1965).

²⁷ Kenosha Liquor Co. v. Heublin Inc., 895 F.2d 418, 420 (7th Cir. 1990); Bituminous Cas. Corp. v. United Military Supply Inc., 69 Wis. 2d 426, 433, 230 N.W.2d 764 (1975); Peil v. Kohnke, 50 Wis. 2d 168, 175, 184 N.W.2d 433 (1971); Hicks v. New York Fire Ins. Co., 266 Wis. 186, 189, 63 N.W.2d 59 (1954); Schulz v. St. Mary's Hosp., 81 Wis. 2d 638, 260 N.W.2d 783 (1978); United States v. City of Miami, Fla., 115 F.3d 870, 873 (11th Cir. 1997).

²⁸ Tyger Constr. Co. Inc. v. Pensacola Constr. Co., 29 F.3d 137 (4th Cir. 1994).

²⁹ Joy v. Bell Helicopter, 999 F.2d 549, 569 (D.C. Cir. 1993); In re Air Crash Disaster at New Orleans, La., 795 F.2d 1230, 1235 (5th Cir. 1986).

³⁰ Glassey v. Continental Ins. Co., 176 Wis. 2d 587, 608-9, 500 N.W.2d 295 (1993); Patterman v. Patterman, 173 Wis. 2d 143, 196 N.W.2d 613 (Ct. App. 1992).

³¹ Fedorczyk v. Carribbean Cruise Lines Ltd., 82 F.3d 69, 75 (3d Cir. 1996) (fall in a bathtub); McGarrity, 104 Wis. 2d 414; Watkins v. Toro Co., ___ S.W.2d ___ (1995)(Automatic shutoff of lawnmower; timing not in evidence) ; Peterson v. Peterson, 126 Wis. 2d 264, 266, 376 N.W.2d 88 (Ct. App. 1985), an expert's opinion that conflicts with a court's order regarding legally relevant factors will be barred, City of Miami.

³² Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 187 (7th Cir. 1993).

³³ Wilson v. City of Chicago, 6 F.3d 1233, 1238-39 (7th Cir. 1993); Viterbo v. Dow Chem. Co., 646 F. Supp. 1420 (E.D. Tex. 1986), aff'd 826 F.2d 420 (5th Cir. 1986); Wojciuk v. U.S. Rubber Co., 19 Wis. 2d 224, 122 N.W.2d 737 (1963). Some cases, however, have simply gone too far: Diviero v. Uniroyal Goodrich Tire Co., 114 F.3d 851 (9th Cir. 1997); Merrell Dow Pharm. Inc. v. Havner, ___ S.W.2d ___ (Tex. 1997)(several experts rejected regarding morning sickness drug).

³⁴ Krueger v. Otis Elevator, no. 95-0253, filed 12/12/95 (unpublished).

³⁵ Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 541 N.W.2d 753; DeChant v. Monarch Life Ins. Co., 204 Wis. 2d 137, 554 N.W.2d 225 (Ct. App. 1996).

³⁶ Getter v. Wal-Mart Stores Inc., 66 F.3d 1119 (10th Cir. 1995) (slip and fall); Jacobson v. Greyhound Corp., 29 Wis. 2d 55, 63, 138 N.W.2d 133 (1965)(snowplowing); White v. Leeder, 149 Wis. 2d 948, 960, 440 N.W.2d 557 (1989)(restraining bulls).

³⁷ Nolop v. Skemp, 7 Wis. 2d 462, 465, 96 N.W.2d 826 (1959).

³⁸ Annotation: "Nonexpert Opinion - Sensory Perception," 10 A.L.R.3d 258. See United States v. DeLuna, 763 F.2d 897 (8th Cir. 1985) (expert on analysis of "conversational power"); El-Meswari v. Washington Gas & Light Co., 785 F.2d 483 (4th Cir. 1986) (mother's emotional reaction upon death of child); State v. Blair, 164 Wis. 2d 64, 74, 473 N.W.2d 566 (Ct. App. 1991).

³⁹ Wingad v. John Deere & Co., 187 Wis. 2d 441, 456, 523 N.W.2d 274 (Ct. App. 1994).

⁴⁰ Jaeger v. Henningson, Durham & Richardson Inc., 714 F.2d 773 (8th Cir. 1983) (architectural site inspection); but see Pierce v. Colwell, 209 Wis. 2d 355, 362, ___ N.W.2d ___ (Ct. App. 1997).

⁴¹ Annotation: "Expert Testimony - Future Pain," 20 A.L.R. 5th 1; Vultaggio v. Gen'l Motors Corp., 145 Wis. 2d 874, 882, 429 N.W.2d 93 (Ct. App. 1988); Crouse v. C & NW R.R. Co., 104 Wis. 473, 484, 80 N.W. 752 (1899); Miller v. Massachusetts Mut'l Life Ins. Co., No. 96-0472 (filed 10/8/96).

⁴² Compton v. Subaru of America Inc., 82 F.3d 1513 (10th Cir. 1996), cert. den. 117 S. Ct. 611 (1997); United States v. Starzecpyzel, 880 F. Supp. 1027 (S.D.N.Y. 1995); McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir. 1995).

⁴³ See Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994); Khan v. State Oil Co., 93 F.3d 1358, 1365 (7th Cir. 1996); Tyus v. Urban Search Management, 102 F.3d 256, 263 (7th Cir. 1996); Cummins v. Lyle Indus., 93 F.3d 362 (7th Cir. 1996); People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 534 (7th Cir. 1997).

⁴⁴ Wilson, Moral Judgment, at 107, 108 (Basic Books, 1997).

⁴⁵ Kraemer v. Theda Clark Mem'l Hosp., 45 Wis. 2d 147, 151, 172 N.W.2d 427 (1969); Valiga v. Nat'l Food Co., 58 Wis. 2d 232, 206 N.W.2d 377 (1973).

⁴⁶ Samuel R. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113, 1127

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