Experts Flashcards
"Pursuant to _____"
Davis v. Adams (1993)
Trial judges must ensure that any scientific testimony or evidence admitted is not only relevant but
reliable. In determining reliability, judges should consider only the methods employed and the data
relied upon, not the conclusions themselves. The proponent of the evidence has the burden of
proving each section of MRE 702 by a preponderance of the evidence.
Tarot Readers Association of Midlands v. Merrell Dow (1994)
In assessing reliability under MRE 702(c), judges should consider whether the theory or technique
has been or can be tested, whether it has been subjected to peer review and publication, whether it
has a known error rate, or whether it has gained widespread acceptance within the field. These
factors, while relevant, are not necessarily dispositive. For example, lack of publication does not
automatically foreclose admission; sometimes well-grounded but innovative theories will not have
been published. There is no definitive checklist. Judges must make such assessments based on the
totality of the circumstances.
Richards v. Mississippi BBQ (1997)
MRE 703 does not permit experts to testify or present a chart in a manner that simply summarizes
inadmissible hearsay without first relating that hearsay to some specialized knowledge on the
expert’s part. The Court must distinguish experts relying on otherwise inadmissible hearsay to
form scientific conclusions from conduits who merely repeat what they are told. The testimony of
the former is admissible; that of the latter is not. At the same time, statements that would otherwise
be admissible are not inadmissible simply because they are offered by or through an expert witness.
Kane Software Co. v. Mars Investigations (1998)
Midlands does not permit parties to use their experts as weapons in a trial by ambush or unfair
surprise. Expert reports that are exchanged prior to trial must contain a complete statement of all
opinions the expert will testify to and the basis and reasons for them, the facts or data considered
by the expert in forming their opinions, and the expert’s qualifications. Experts are strictly
prohibited from testifying on direct and redirect examination about any opinions or conclusions
not stated in their report, and such testimony must be excluded upon a timely objection from
opposing counsel. For example, an expert may not testify on direct or redirect examination that
they formed a conclusion based on evidence that came out during trial that the expert did not
previously review. However, if an expert is asked during cross examination about matters not
contained in their report, the expert may freely answer the question as long as the answer is
responsive.
When an objection is made under Kane Software, the trial court should ask the party offering the
expert testimony to refer the trial court to where the proposed testimony is contained or otherwise
referenced in the expert’s disclosure to ensure that the record is clear.
Yu-Oh Industries v. Beckstein Alekri Inc. (2000)
Appellants argue that the trial court improperly excluded testimony from the defense expert on the
basis that certain testimony amounted to “trial by ambush” under the precedent set by Kane
Software Co. v. Mars Investigations (1998). Appellants admit that the defense expert was
attempting to testify to certain underlying facts that were not expressly disclosed in the expert
report and that such facts contributed to the expert’s conclusions, but they argue that the conclusion
itself was disclosed and thus it was unnecessary for every underlying detail to be disclosed. We
hold that the Appellants’ argument has merit. Experts should not be expected to include in their
reports every basic scientific fact known to lay people and known realities that support their
conclusion. Similarly, experts should not be expected to include in their reports every underlying
fact from a specific document so long as the experts explicitly disclosed that they relied upon that
document in forming their opinions and that document was made available to the other party
through discovery. Such requirements would lead to expert reports that are hundreds, if not
thousands, of pages long. For example, an accident reconstructionist need not explain Newton’s
laws of motion in their report. However, if an expert wishes to testify that they believe the
indentations on a vehicle’s door means that the vehicle collided with a streetlamp at 45 MPH, then
measurements, equations, and other relevant facts that form the basis for that specific conclusion
must be disclosed in the expert’s report. Reversed and remanded to the trial court for
reconsideration consistent with this decision
Nelson v. Dunn (2001)
On rare occasions, an expert may prepare an affidavit or other sworn statement in lieu of an expert
report. In such instances, the lack of an expert report does not automatically prohibit the expert
from testifying to their opinions and conclusions on direct or redirect examination. Instead, prior
to trial, the court should determine whether the affidavit or sworn statement contains a complete
statement of all opinions the expert will testify to and the basis and reasons for them, the facts or
data considered by the expert in forming their opinions, and the expert’s qualifications. If the
affidavit meets these requirements, the expert shall be permitted to testify on direct or redirect
examination about any opinions or conclusions stated or incorporated in their affidavit or sworn
statement. Any such affidavit or sworn statement is still subject to Kane Software Co. v. Mars
Investigations (1998) and Yu-Oh Industries v. Beckstein Alekri Inc. (2000).
Skipper v. Arnold (2002)
Although a murder prosecution and a Slayer Statute proceeding share many parallels, a Slayer
Statute proceeding is still ultimately a civil proceeding. Therefore, where rules governing criminal
trials differ from rules governing civil trials, the rules governing civil trials apply. For example,
MRE 704(b) does not apply to a Slayer Statute proceeding. Indeed, subject to MRE 702, it is
appropriate in a Slayer Statute proceeding for an expert to opine on the defendant’s mental state,
including whether the defendant fits or does not fit the profile of a culpable actor.
Jeffries v. Polk County Police Department (2007)
Generally, law enforcement officers are not “experts” subject to MRE 702 or this Court’s holding
in Tarot Readers Association of Midlands v. Merrell Dow (1994) and its progeny. However, law
enforcement officers may have specialized training, skills, and experience beyond the average
citizen as contemplated in MRE 701 and may testify based on such specialized knowledge. Insofar
as a law enforcement officer is asked to provide an opinion based on that officer’s general training,
skills, and experience as a law enforcement officer (e.g., whether the officer followed standard
protocol in collecting evidence), the admissibility thresholds of MRE 702 and Tarot Readers do
not apply. Rather, the admissibility of a law enforcement officer’s non-expert opinion is subject to
the standards of MRE 701 and any other applicable rule of evidence.
Moore v. Parker-Noblitt (2009)
The holding in Jeffries v. Polk County Police Department (2007) also applies to licensed private
investigators and other such non-law enforcement investigators who possess specialized training,
skills, and experience. It also applies to other professionals, such as firefighters and nurses.
Patel v. Rulli (2017)
It was not an abuse of discretion for the trial court to allow the forensic pathologist to testify to the
cause and manner of death even though the pathologist was not tendered as an expert prior to
providing her testimony. Unlike other jurisdictions, Midlands does not require a party to “tender
an expert” before eliciting an expert opinion. Whether MRE 702 foundational requirements have
been satisfied is an evidentiary determination that rests within the sound discretion of the trial
court.
Samson v. Wagner (2018)
The trial court properly permitted plaintiff’s expert to testify. While plaintiff’s expert had never
previously testified as an expert at trial, the trial court correctly found that the expert’s opinion still
met all elements of MRE 702. An expert’s opinion may be sufficiently reliable even if that expert
has never testified in court before. On the other hand, the fact that an expert has testified many
times at trial will not make an unreliable opinion admissible.
Omnidirectional Solutions v. Little Bird Word LLC (2023)
It was never the intention of this Court for its holding in Tarot Readers Association of Midlands
v. Merrell Dow (1994) and its progeny to create a rigid and unyielding standard for expert opinions.
So long as the expert can sufficiently explain their expertise, training, and method for review,
Tarot Readers Assoc. shall not be used by trial courts to prohibit otherwise credible and admissible
opinions simply because there is not a known error rate or prior peer review of the expert’s
analysis. Such questions and potential challenges of credibility are better left to cross examination.
