Opinion Flashcards
Abe Adams is one of the last survivors of World War One, during which he endured a mustard gas attack. He was living on the outskirts of the area affected by the gas cloud. The plaintiffs in the civil suit wish to call him to compare the effects of mustard gas to what victims of the ammonia and chlorine gas cloud would have endured before they died. The defendants’ objection that Adams is incompetent is sustained. Adams then states that he also was in the line when the Germans used chlorine gas and that he witnessed what happened to soldiers who did not get their gas masks on in time. The defendants object that Adams is not qualified as an expert to testify about the effects of chlorine gas. How should the judge rule and why?
Allow it because has experience, can talk about what he saw; agony will be relevant
Observational knowledge – Can talk about in his opinion what people go through generally when breathing gas
The government produces Viola Reinke, defendant Gerald Garnosio’s sixth grade English teacher to say that she can identify the handwriting in the demand letters to AB as coming from defendant Garnosio. Defendants object that Reinke is not an expert in documents identification or handwriting comparison, and should not be found to be competent to testify. How should the judge rule?
Overrule objection because first hand familiarity; may be issue with time if it has changed but can be overcome with her looking at it and saying has not changed
In the civil case, the plaintiffs produce Horace Kreinick, a high school chemistry teacher, to testify about what happens when ammonia and chlorine bleach mix. AB asks to voir dire the witness first. The judge agrees, and Kreinick testifies that his has a BA in teaching, with a specialty in history. He further states that he took one summer school course to prepare to teach chemistry. He states that in class, he demonstrates the production of gases by mixing ammonia and chlorine bleach under an exhaust hood. AB objects the Kreinick is not competent to testify as an expert. How should the judge rule?
Lay expert; limit testimony to what he observes; careful to not turn him into Rule 702 witness; allowed to say pour two things together, green gas results and don’t want to breathe it in
In the civil case, the plaintiffs produce Thomas Loraine to testify that while a custodian for the St. Louis public schools, he decided to clean an especially dirty bathroom by mixing ammonia and chlorine bleach. He can describe that a greenish gas was produced and how that gas affected him in the enclosed space of the bathroom. AB objects that Loraine is not competent to testify as an expert. How should the judge rule?
Not an expert of any kind Limited to what he has experienced
Does 1 time make you an expert?
The plaintiffs call William Hunt to testify as an expert in chemistry. AB objects that he is not a competent witness. The plaintiffs respond that AB hired him as a chemist; that he worked at AB for nearly 25 years; and that AB was always satisfied with is work. How should the judge rule?
Adequate to lay the foundation
Assume that the judge tells the plaintiffs that he needs further qualifications for Hunt before he is willing to rule. What other information would you present to the judge to help him rule?
Qualifications of his education as a chemist or training he has gained in the field of chemistry
Professional associations, keeping current on knowledge (CLE type stuff)
After further qualifications are met, the judge finds that Hunt is an expert in inorganic chemistry dealing with transitional metals. The judge rules that as Hunt is an expert in one form of chemistry, Hunt will be allowed to testify about the ammonia/chlorine bleach issues. AB objects that Hunt is not properly qualified as an expert. What arguments should AB put on the record to maintain the best posture for an appeal?
Expert in general field does not mean expert in specific field
Need to show how inorganic chem is different than O-Chem
Plaintiffs call Dr. Heinrich Schliemann to testify about the effects of the chlorine gas on victims. Dr. Schliemann bases his testimony on a new medical technique for analyzing damage to human tissues which he has invented. AB asks for a pre-trial hearing on whether Dr. Schliemann should be allowed to testify. What are the issues which will need to be resolved in this hearing?
Whether this technique has been or can be empirically tested; if it has been subject to peer review and publication; known potential error rate of the technique; how widespread the technique is; Did research independent of litigation; careful with how he conducted research
AB wishes to present testimony that they had studies done on the strength of the tanks holding the ammonia and the chlorine bleach to be sure that they were situated at a proper distance. They hired the engineering firm of Parker & Barrow to do this work. AB now wishes to call Lester Gillis, the employee of Parker & Barrow who did the study, to testify about his study and the results he presented to AB. Gillis has an engineering MS degree from Michigan State University related to the manufacture of containers. Plaintiffs object that Gillis’ study did not comport with the requirements of Daubert and request a pre-trial hearing?
a. Should the judge have a hearing on engineering instead of scientific testimony? b. If the judge orders such a hearing, what will AB need to show?
c. If the judge rules that AB cannot present expert testimony from Gillis, how can they still show his study to the jury?
a. How should the court rule?
Not allow because 704(b) in criminal cases not allow ultimate question about defendant’s mental capacity in by witness expert; Can use as lay expert; talk about observations
b. Would the ruling be different if a psychiatrist was presenting the same testimony based on his observations of Garnosio?
Cannot make a psychiatrist a 701 witness
c. If the judge rejects the defendant’s request, what testimony should be allowed?
Observations would be allowed
In the damages phase of the civil case, the plaintiffs present the testimony of an actuary about the life expectancy of the victims and potential earnings. To prove the earnings, the actuary has reviews employment records for each victim for a period of 10 years. This amounts to a mountain of documents. AB demands that the actuary review each document he used with the jury to be allowed to testify as an expert on loss of income. How should the judge rule?
Rule 705 states the expert need not testify on direct examination about the facts or data which underlie the opinion unless required by the judge; facts and data may be explored on cross. Judge should not allow this because it will be too time consuming
Although AB had pre-trial access to all of the documents the actuary used in making his determinations, those documents are not presented in court. AB objects that the jury must be given the documents on which the opinion was based. How should the judge rule?
The judge should give the documents to the jury; the data is not a type reasonably relied on by experts in the field forming opinions because unique to the victims in this case
Dr. Mary Case, the coroner for the City of St. Louis, will be called in both the civil and criminal cases to testify about the cause of death. What questions must be asked of her to qualify her as an expert?
Have you been qualified as an expert before? Education; training
