Expert Opinion Testimony and the Standard of Appellate Review

Posted by David Adelstein on January 11, 2015
Appeal, Expert Testimony, Standard of Review

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Previously, I discussed expert opinion testimony and the Daubert gatekeeping test employed by trial courts to determine the admissibility of the expert testimony. But, there is much more to expert opinion testimony. 

An expert witness is NOT allowed to serve as a conduit for inadmissible hearsay so that a party is using an expert witness to simply get in testimony/evidence that is otherwise inadmissible. Doctors Co. v. State, Dept. of Ins., 940 So.2d 466, 470 (Fla. 1st DCA 2006) (“The rule is well established that if an expert is called merely as a conduit to place inadmissible evidence before the jury, the trial court appropriately exercises its discretion by excluding such evidence.”); accord Tolbert v. State, 114 So.3d 291, 294 (Fla. 4th DCA 2013) (internal quotation and citation omitted) (“Although an expert may rely on hearsay in reaching the expert’s opinion, an expert’s testimony may not merely be used as a conduit for the introduction of the otherwise inadmissible evidence.”)

Moreover, an expert is NOT permitted to bolster his/her credibility on direct examination by testifying that he/she relied on communications/consultations (hearsay) with other experts in order to reach his/her expert opinion. See Linn v. Fossum, 946 So.2d 1032 (Fla. 2006). Stated differently, an expert cannot bolster his/her credibility by testifying that a treatise, article, study, or colleague (e.g., hearsay) agrees with his/her opinion before the expert has been impeached on cross-examination. See Duss v. Garcia, 80 So.3d 358 (Fla. 1st DCA 2012).

What if the trial court allows or disallows expert testimony? In other words, what if the trial court grants a motion to strike an expert (or certain expert testimony) or denies a motion to strike an expert (or certain expert testimony)? 

“The standard of [appellate] review for trial court decisions concerning the qualifications of expert witnesses and the scope of their testimony is abuse of discretion.”   County of Volusia v. Kemp, 764 So.2d 770 (Fla. 5th 2000) (reversing final judgment because trial court erred in allowing expert opinion testimony). This means that a trial court’s acceptance of expert opinion testimony or rejection of expert opinion testimony will NOT be disturbed on appeal unless the trial court abused its discretion. Doctors Co., 940 So.2d 466 (finding the trial court did not abuse its discretion in disallowing expert testimony).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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