Pg 47

Question 1

What are the things an expert can base his opinion on?

Answer 1

He can base it on opinion about facts or data in the case that he was made aware of or personally observed (PK).

Question 2

Must an expert’s testimony be based on personal knowledge?

Answer 2

No, the opinion can be based on something besides personal observation

Question 3

Can experts rely on secondhand information including hearsay?

Answer 3

Yes

Question 4

In a personal injury case if the plaintiff’s attorney asks an expert, “do you have an opinion about whether plaintiff’s injuries are permanent?“ If the expert says “yes they are” and the attorney asks what the expert based his opinion on and the expert says, “medical reports I viewed that are not here today“ since those reports are hearsay, is that acceptable?

Answer 4

Yes. The test is just whether experts in the field would reasonably rely on that kind of information to form their opinions

Question 5

What are the different ways that an expert can be made aware of a fact?

Answer 5

– the attorney can inform him
– the expert does his own investigation or exam
– expert observed in-court testimony
– the attorney asks hypothetical questions

Question 6

What is involved in an expert becoming aware of information through an attorney informing him?

Answer 6

The attorney can inform the expert about the case before trial and tell him what facts to assume. The attorney just have to be careful to not give a skewed version of the facts. This can include medical reports, witness statements, etc.

Question 7

What is an example of an expert becoming aware of facts through his own investigation or exam?

Answer 7

He read a doctor’s report, but then did his own exam of the plaintiff’s injuries, or he went to the scene of the accident to measure skidmarks

Question 8

What is involved in an expert becoming aware of facts through observing them via in-court testimony?

Answer 8

Parties can ask that the expert be sequestered if they feel that him watching another witness testify will shape his own testimony against what the other witness said. However you cannot exclude a nonparty witness if their
presence is essential to the presenting party’s claim or defense. This includes situations where the expert could help the attorney understand the case and formulate lines of questions, or their presence observing other witnesses is essential to their own testimony

Question 9

What is involved in an expert becoming aware of facts through the attorney asking hypothetical questions?

Answer 9

When an expert opinion is based on facts from a hypothetical question, the question assumes facts that are in evidence or expected in good faith to be admitted. If those things are not true, then the jury is just being mislead through the question

Question 10

If an attorney asks an expert to assume the plaintiff fell and had brittle bone disease, then what is necessary?

Answer 10

The plaintiff must actually have that, otherwise the attorney is suggesting to the jury that the plaintiff does have it.

Question 11

How does a reverse 403 apply to disclosing the basis for expert opinion?

Answer 11

If the facts or data would otherwise be in admissible, the expert can disclose them to a jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. Strong presumption of inadmissibility

Question 12

If an expert relied on information that wouldn’t be admissible in court, can the party backdoor that information into court through the expert?

Answer 12

The only way that the expert can provide the contents of the hearsay information his opinion is based on is if it meets the reverse 403 test.

Question 13

If an expert testified that his opinion is based on a medical report that is hearsay, can he also testify about the contents of that report?

Answer 13

Not unless it meets a reverse 403 test

Question 14

If an expert testified that based on a medical report, he thinks the plaintiff’s injuries are permanent. If the attorney asked him what about the report made him think that, would it be permissible for the expert to say that the report showed two severed spinal cords?

Answer 14

Likely, because under a reverse 403 test, there is nothing prejudicial here

Question 15

Is it permissible for an expert to disclose the basis or reasons for his opinion without first testifying to the underlying facts or data?

Answer 15

Yes but he doesn’t have to. Experts are not required to disclose the data that their opinion is based on as long as the attorney has laid foundation for the expert’s qualifications

Question 16

The reverse 403 test applies to disclosing the basis of an expert’s testimony when the expert is being questioned on direct, but what about cross and redirect?

Answer 16

It doesn’t apply to those

Question 17

If opposing counsel is cross examining an expert witness, can they disclose the contents of the data that the expert relied on to impeach the expert?

Answer 17

Yes. I.e.: the defence attorney could ask, “isn’t it true that the doctor’s conclusion in the report just says that the patient had a boo-boo?“ That would be fine because you can cross examine an expert about anything he relied on if your goal is to impeach his credibility or undercut his opinion

Question 18

When is it possible to ask an expert about the basis of his expert opinion when you were on redirect?

Answer 18

If opposing counsel has already asked about it on cross. And then you can elicit other facts on redirect to rehabilitate the expert’s credibility

Question 19

If a mom is prosecuted for child endangerment and the prosecution calls an expert who says that based on his education and review of the medical reports, his opinion is that the baby suffered from shaken baby syndrome. On cross-examination, the attorney asks, “isn’t it true that the writer of the medical report said she couldn’t reach a definitive conclusion?“ On redirect, what can the expert testified to?

Answer 19

The expert can testify that the reason the report led him to his conclusion was that it said the baby had burst could pillories, which the expert nose is unique to shaken baby. That is OK because the expert has been cross examined about parts of the report that undercut his opinion, so he’s allowed to rehabilitate himself by pointing out parts of the report that support his conclusion

Question 20

Can a learned treatise be the basis for an expert’s opinion on direct?

Answer 20

Yes if it meets the requirement for learned treatises, it can be admissible for its truth and also to support the credibility of the expert that relied on it. This can also be introduced for the first time on cross to impeach the expert or for its truth

Question 21

Experts can give an opinion that goes to an ultimate issue, they just can’t do what?

Answer 21

They cannot couch it in terms of legal conclusion

Question 22

What is the difference between the FRE & California when it comes to expert witnesses?

Answer 22

In California there is a heightened standard for disclosing the basis of the expert’s opinion on direct, but in the Sanchez opinion: hearsay evidence cannot be disclosed to the jury just because it is the basis of expert opinion. This is a more stringent standard than reverse 403 because it completely doesn’t allow the basis of an expert opinion being let in on direct