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Medical Negligence Attorneys
Philadelphia, Pennsylvania
MEDICAL EXPERTS - WHEN & HOW THEY HELP YOU WIN
By, Norman Perlberger, Esquire1
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II. When Opinion Evidence is Needed and How Far Can it Go
The Pennsylvania and Federal Rules of Evidence provide the legal guidelines for opinion testimony. The Comments to these Rules also provide valuable insight and a wealth of case references on the subject. In many respects, they are similar to each other, but in certain other ways, discussed hereunder, the federal and state standards differ. It is important for the practitioner to know these differences. Of course, if the cases are venued in other states, those rules need to be reviewed and applied in practice.
Rule 701. Opinion Testimony by Lay Witnesses.
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness, and helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and not based on scientific, technical or other specialized knowledge within the scope of Rule 702.
Comment
F.R.E. 701 was amended, effective December 1, 2000, to clarify that testimony based on scientific, technical, or specialized knowledge is governed by F.R.E. 702, and not F.R.E. 701. The 2001 amendment to Pa.R.E. 701 is likewise aimed at clarifying that testimony based on scientific, technical, and specialized knowledge is governed by Pa.R.E. 702. This rule is identical to F.R.E. 701 except for the deletion of the (a) and (b) divisions within the text of the rule. No substantive changes result from this deletion.
Pa.R.E. 701 is consistent with Pennsylvania law. See Lewis v. Mellor, 259 Pa. Super. 509, 393 A.2d 941 (1978) (adopting F.R.E. 701). Under Lewis, lay opinion may embrace the ultimate issue. See Pa.R.E. 704. The trial judge may exclude the opinion if the trial judge decides that it would not be helpful, or would confuse, mislead, or prejudice the jury, or would waste time. Lewis, 259 Pa. Super. at 523-24, 393 A.2d at 949.
Rule 702. Testimony By Experts.
If scientific, technical or other specialized knowledge beyond that possessed by a layperson 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.
Comment
Pa.R.E. 702 differs from F.R.E. 702 in that the words ‘‘beyond that possessed by a lay person’’ have been added to make the rule consistent with Pennsylvania law. See Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992).
Adoption of Pa.R.E. 702 does not alter Pennsylvania’s adoption of the standard in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which requires scientific evidence to have ‘‘general acceptance’’ in the relevant scientific community. See Commonwealth v. Dunkle, supra; Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). In 1993, the United States Supreme Court held that Frye was superseded in the federal courts by the adoption of F.R.E. 702. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Grady v. Frito-Lay, Inc., 839 A.2d 1038 (Pa. 2003), a majority of the Pennsylvania Supreme Court rejected the Daubert standard and affirmed the applicability of the Frye standard in the Pennsylvania state courts. Pennsylvania’s express rejection of the Daubert standard in favor of the Frye test was reaffirmed in Commonwealth v. Dengler, 586 Pa. 54, 890 A.2d 372 (Pa. 2005).
Pa.R.E. 702 does not change the Pennsylvania rule for qualifying a witness to testify as an expert. In Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995), the Supreme Court stated:
The test to be applied when qualifying a witness to testify as an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.3
Pa.R.E. 702 does not change the requirement that an expert’s opinion must be expressed with reasonable certainty. See McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971).
Pa.R.E. 702 states that an expert may testify in the form of an ‘‘opinion or otherwise.’’ Much of the literature assumes that experts testify only in the form of an opinion. The language ‘‘or otherwise’’ reflects the fact that experts frequently are called upon to educate the trier of fact about the scientific or technical principles relevant to the case. See F.R.E. 702 advisory committee notes.
Rule 703. Bases of Opinion Testimony by Experts.
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Comment
Pa.R.E. 703 differs from F.R.E. 703 as discussed below. Pa.R.E. 703 is consistent with prior Pennsylvania case law. F.R.E. 703 was amended on December 1, 2000, to add a balancing test that tilts against disclosure to a jury of otherwise inadmissible facts or data upon which an expert witness bases his or her opinion. In Pennsylvania, however, Pa.R.E. 705 requires an expert witness to testify as to the facts or data upon which the witness’s opinion is based, whether or not the facts or data would otherwise be admissible in evidence.
Historically, Pennsylvania courts limited the facts or data upon which an expert could base an opinion to those obtained from firsthand knowledge, or from substantive evidence admitted at trial. See, e.g. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968); Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963). In the case of Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), the Pennsylvania Supreme Court adopted a rule that allows a medical expert witness to offer an opinion that is based, in part, on otherwise inadmissible hearsay, if it is of a type that is customarily relied on by the expert in the practice of the expert’s profession.
Later case law expanded the evidential ruling in the Thomas case to various non-medical expert witnesses. See, e.g., Steinhauer v. Wilson, 336 Pa. Super. 155, 485 A.2d 477 (1984) (expert on construction costs); Maravich v. Aetna Life & Casualty Co., 350 Pa. Super. 392, 504 A.2d 477 (1986) (fire marshal); Kearns v. DeHaas, 377 Pa. Super. 392, 546 A.2d 1226 (1988) (vocational expert); In re Glosser Bros., 382 Pa. Super. 177, 555 A.2d 129 (1989) (tax accountant); Commonwealth v. Bowser, 425 Pa. Super. 24, 624 A.2d 125 (1993) (accident reconstruction expert).
Pa.R.E. 703 requires that the facts or data upon which an expert witness bases an opinion be ‘‘of a type reasonably relied upon by experts in the particular field . . . . ’’ Whether the facts or data satisfy this requirement is a preliminary question to be determined by the trial court under Pa.R.E. 104(a). lf an expert witness relies on novel scientific evidence, Pa.R.C.P. No. 207.1 sets forth the procedure for objecting, by pretrial motion, on the ground that the testimony is inadmissible under Pa.R.E. 702, or Pa.R.E. 703, or both.
When an expert testifies about the underlying facts and data that support the expert’s opinion and the evidence would be otherwise inadmissible, the trial judge, upon request shall or on his own initiative may instruct the jury to consider the facts and data only to explain the basis for the expert’s opinion, and not as substantive evidence.
An expert witness cannot be a mere conduit for the opinion of another. Cases hold that it is error for an expert witness to relate the opinion of a non-testifying expert unless the witness has reasonably relied upon it, in part, in forming the witness’s own opinion. See, e.g., Foster v. McKeesport Hospital, 260 Pa. Super. 485, 394 A.2d 1031 (1978); Allen v. Kaplan, 439 Pa. Super. 263, 653 A.2d 1249 (1995).
Rule 704. Opinion on Ultimate Issue.
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.
Comment
Pa.R.E. 704 is substantively the same as F.R.E. 704(a) and is consistent with Pennsylvania law. F.R.E. 704(b) has not been adopted.
Under Pennsylvania law, the trial judge has discretion to allow lay opinion on the ultimate issue. The judge must balance the helpfulness of the testimony against its potential to cause confusion or prejudice. See Lewis v. Mellor, 259 Pa. Super. 509, 393 A.2d 941 (1978); Pa.R.E. 701 and its comment.
Pennsylvania law allows expert opinion testimony on the ultimate issue. See Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Cooper v. Metropolitan Life Ins. Co., 323 Pa. 295, 186 A. 125 (1936). As with lay opinions, the trial judge has discretion to admit or exclude expert opinions on the ultimate issue depending on the helpfulness of the testimony versus its potential to cause confusion or prejudice. See Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987); Commonwealth v. Brown, 408 Pa. Super. 246, 596 A.2d 840 (1991).
Pa.R.E. 704 omits F.R.E. 704(b) which prohibits an expert from testifying with respect to whether the defendant in a criminal case did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. When the Superior Court in Lewis v. Mellor, adopted F.R.E. 704 in 1978, it only contained part (a). F.R.E. 704(b) was added in 1984. The Pennsylvania Supreme Court has consistently held that expert psychiatric testimony is admissible to negate the specific intent to kill which is essential to first degree murder. See Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398 (1987); Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976).
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion.
The expert may testify in terms of opinion or inference and give reasons therefor; however, the expert must testify as to the facts or data on which the opinion or inference is based.
Comment
The text and substance of Pa.R.E. 705 differ significantly from F.R.E. 705. The Federal Rule generally does not require an expert witness to disclose the facts upon which an opinion is based prior to expressing the opinion. Instead, the cross-examiner bears the burden of probing the basis of the opinion. Pennsylvania does not follow the Federal Rule. See Kozak v. Struth, 515 Pa. 554, 560, 531 A.2d 420, 423 (1987) (declining to adopt F.R.E. 705, the Court reasoned that ‘‘requiring the proponent of an expert opinion to clarify for the jury the assumptions upon which the opinion is based avoids planting in the juror’s mind a general statement likely to remain with him in a jury room when the disputed details are lost.’’) Relying on cross examination to illuminate the underlying assumption, as F.R.E. 705 does, may further confuse jurors already struggling to follow complex testimony. Id.
Accordingly, Kozak requires disclosure of the facts used by the expert in forming an opinion. The disclosure can be accomplished in several ways. One way is to ask the expert to assume the truth of testimony the expert has heard or read. The Kroeger Co. v. W.C.A.B., 101 Pa. Cmwlth. 629, 516 A.2d 1335 (1986); Tobash v. Jones, 419 Pa. 205, 213 A.2d 588 (1965). Another option is to pose a hypothetical question to the expert. Dietrich v. J.I. Case Co., 390 Pa. Super. 475, 568 A.2d 1272 (1990); Hussy v. May Department Stores, Inc., 238 Pa. Super. 431, 357 A.2d 635 (1976).
The salient facts relied upon as the basis of the expert opinion must be in the record so that the jury may evaluate the opinion. See Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988). The expert’s testimony regarding the facts or data on which the opinion is based is subject to Pa.R.E. 703.
RECENT CASE:
Trach v. Fellin, 817 A.2d 1102 (Pa. Super. 2003), alloc. den. 847 A.2d 1288 (Pa. 2004).
The facts of this case were not in dispute. Trach, a healthy, 47-year-old man, went to his dentist on July 11, 1995, complaining of pain in his jaw. The dentist, suspecting an infection, gave Trach a prescription for forty 250-mg. capsules of Amoxil, an antibiotic, which Trach then took to a Thrift Drug Store pharmacy to fill. A pharmacy assistant mistakenly gave Trach 29 capsules of the antidepressant Doxepin, and told him to return for the remaining 11 capsules in a few days, as the pharmacy did not have 40 capsules in stock. Doxepin has the potential to cause serious adverse reactions in individuals who take it in the recommended dosage. Trach, however, took the Doxepin according to the dosage his dentist prescribed for Amoxil, for which the dosage was appropriate. According to Trach's expert's report, Trach took 1,800 mgs. of Doxepin on the first day. The recommended optimal dose range for Doxepin is between 75 mg. and 150 per day, while the maximum recommended dose is 300 mg. per day. The prescription called for Trach to take two 250 mg. capsules of the antibiotic four times per day, or 2,000 mg. per day. Testimony presented at trial indicated that the Doxepin capsules the pharmacy assistant gave Trach were 150 mg. capsules. While slight discrepancies existed between Dr. Shane's report and his testimony at trial as to the exact amount of Doxepin Trach took, no one disputed that it was a massive overdose.
To support his claim that the Doxepin overdose caused the cognitive and vision problems he continues to experience, Trach proffered expert testimony from a board-certified pathologist and toxicologist, Dr. John Shane. Prior to trial, Thrift Drug filed a motion in limine to preclude Dr. Shane's testimony, claiming it did not meet the requirements for scientific expert evidence set forth in Frye, supra, and its progeny.
The Superior Court reviewed the standards set down in Frye and subsequent
cases:
We first consider the circumstances under which our supreme court has analyzed the admissibility of evidence pursuant to Frye. We begin with the observation that Frye, by definition, only applies where expert testimony is required. Frye, 293 F. at 1014 ("'When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science . . . are admissible in evidence'"), quoting brief for the United States.
A review of our supreme court's application of Frye over the past twenty-five years also supports the proposition that Frye only applies when a party seeks to introduce novel scientific evidence. See Blasioli, supra, 552 Pa. at 153, 713 A.2d at 1119 ("In determining whether novel scientific evidence is admissible . . ., Pennsylvania courts apply the test set forth in Frye . . . .") (emphasis added). See also Topa, supra, a case involving novel scientific methodology. Thus, Frye does not apply every time science enters the courtroom.
The supreme court reaffirmed the proper application of Frye when it adopted Pa.R.Civ.P. 207.1, "Motion to Exclude Expert Testimony Which Relies upon Novel Scientific Evidence." Pa.R.Civ.P. 207.1, 42 Pa.C.S.A., adopted 2001, January 22, 2001, effective July 1, 2001 . As the explanatory comment to that Rule states, "The purpose of new Rule 207.1 is to provide the procedure for pre-trial motions concerning the admissibility of expert testimony which relies upon novel scientific evidence."
The Federal Rules of Evidence embody a "strong and undeniable preference for admitting any evidence having some potential for assisting the trier of fact." DeLuca v. Merrell Dow Pharmaceutical, Inc., 911 F.2d 941, 956 (3d Cir. 1990). "Rule 702, which governs the admissibility of expert testimony, specifically embraces this policy," United States v. Velasquez, 64 F.3d 844, 849 (3d Cir. 1995), and has a liberal policy of admissibility. In re Paoli R.R. Yard Litigation ("Paoli II"), 35 F.3d 717, 741 (3d Cir. 1994). Together, Rules 702 and 104(a) instruct the district court in determining the admissibility of expert testimony.
Rule 702 provides:
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.
Under Rule 104(a), the district court makes preliminary determinations whether the proposed expert witness is qualified and whether the testimony to be given is admissible under Rule 702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796 (1993). This preliminary task ensures that the testimony meets a minimum threshold of reliability and relevance. Id. at 2795; Velasquez, 64 F.3d at 829.
Under Rule 702, (1) the proffered witness must be an expert; (2) testify about matters requiring scientific, technical or specialized knowledge; and (3) the expert's testimony must assist the trier of fact. Paoli II, 35 F.3d at 741-42.
The first requirement of Rule 702 -- that the proposed witness be an expert -- has been liberally construed by this Court. Paoli II, 35 F.3d at 741. "We have held that a broad range of knowledge, skills, and training qualify an expert as such," and have "eschewed imposing overly rigorous requirements of expertise." Id.; see also Hammond v. International Harvester Co., 691 F.2d 646, 653 (3d Cir. 1982)(permitting engineer with sales experience in automotive and agricultural equipment, who also taught high school automobile repair, to testify in products liability action involving tractors). Velasquez, 64 F.3d at 849.
Because of a liberal approach to admitting expert testimony, most arguments about an expert's qualifications relate more to the weight to be given the expert's testimony, than to its admissibility. Thus, witnesses may be competent to testify as experts even though they may not, in the court's eyes, be the "best" qualified. Who is "best" qualified is a matter of weight upon which reasonable jurors may disagree.
In Paoli II, the Third Circuit reversed the district court's finding that a witness was not qualified because the Court found that the doctor, "while arguably a relatively poor clinician and less than fully credible witness, qualifie[d] as an expert." 35 F.3d at 753. Similarly, in re Paoli R.R. Yard PCB Litigation ("Paoli I"), 916 F.2d 829 (3d Cir. 1990), the Court stated that:
[I]nsistence on a certain kind of degree or background is inconsistent with our jurisprudence in this area. The language of Rule 702 and the accompanying advisory notes make it clear that various kinds of "knowledge skill, experience, training or education," Fed. R. Evid. 702, qualify an expert as such. Id. at 855.
Following this logic, it is an abuse of discretion to exclude testimony simply because the trial court does not deem the proposed expert to be the best qualified or because the proposed expert does not have the specialization that the court considers most appropriate. Id. at 856.
The Notes of the Advisory Committee on Rule 703, the corollary to Rule 702, refer to, inter alia, reliance on reports of others:
[A] physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.
The Federal Rules of Evidence are meant to instruct the district courts in the sound exercise of their discretion in making admissibility determinations and should not be interpreted as exclusionary rules. It would be inconsistent and run counter to the Rules' liberal policy of admissibility to allow an outside expert, hired solely for litigation purposes, to rely on and testify about a pathology report, but exclude testimony by the treating physician who ordered the report and relied on it for life and death decisions about the patient's treatment. Opinions by physicians who have neither examined nor treated a patient "have less probative force, as a general matter, then they would have if they had treated or examined him." Wier ex rel. Wier v. Heckler, 734 F.2d 955, 963 (3d Cir. 1984).
Fed Rule 702, as interpreted by Daubert, has a second crucial requirement:
The second requirement of Rule 702 -- that the expert testify to scientific, technical or other specialized knowledge -- is intended to ensure the reliability or trustworthiness of the expert's testimony. Velasquez, 64 F.3d at 849 (citation omitted).
Under Daubert's interpretation of Rule 104(a), a district court facing a proffer of scientific expert testimony must as a preliminary matter assess whether the reasoning or methodology underlying the expert's testimony is scientifically valid. The court accomplishes this "by considering all relevant factors that may bear on the reliability of the proffered evidence." Velasquez, 64 F.3d at 849; see also Paoli II, 35 F.3d at 742. As was held in Daubert: The reliability requirement, however, should not be applied too strictly. Helpfulness to the trier of fact remains the ultimate touchstone of admissibility. If the expert has "good grounds" for the testimony, the scientific evidence is deemed sufficiently reliable. A determination that the expert has good grounds assures that the expert's opinions are based on science rather than "subjective belief or unsupported speculation." 113 S. Ct. at 2795.
3The McCare Act, discussed hereunder, altered this general rule of admissibility for medical witnesses in a medical malpractice case.
