Expert Witnesses can Rely on Hearsay….But…

Posted by David Adelstein on September 12, 2015
Evidence, Expert Testimony

Expert witnesses can rely on hearsay (or inadmissible evidence) in arriving at their expert opinions subject to exceptions set forth below. Vega v. State Farm Mut. Automobile, 45 So.3d 43 (Fla. 5th DCA 2010) (expert automobile appraiser was entitled to rely on other persons knowledge in vintage automobiles to arrive at estimated value of vintage vehicle); Houghton v. Bond, 680 So.2d 514 (Fla. 1st DCA 1996) (expert allowed to rely on inadmissible study to arrive at expert opinion).

Indeed, Florida Statute s. 90.704 supports this point by stating:

If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

The key, as set forth in s. 90.704, is that the inadmissible hearsay the expert relies on must be the type reasonably relied upon by experts in the field. See Vega, 45 So.3d 43.

Yet, while the expert can rely on hearsay to arrive at their opinion, the expert cannot (a) serve as a conduit for purposes of getting into evidence otherwise inadmissible hearsay or (b) use hearsay to merely bolster the credibility of their opinion by testifying that a particular writing or other expert agrees with the expert’s opinion. See Duss v. Garcia, 80 So.3d 358, 364 (Fla. 1st DCA 2012); see also Linn v. Fossum, 946 So.2d 1032 (Fla. 2006) (expert not able to testify that he consulted with other experts as it effectively bolsters the credibility of the expert’s opinion based on hearsay); Department of Corrections, State of Fla. v. Williams, 549 So.2d 1071 (Fla. 5th DCA 1989) (while expert could rely on affidavit in forming opinion, the affidavit was not admissible to allow the expert to serve as a conduit to introduce inadmissible evidence).

Typically, if an expert’s opinion is based solely on inadmissible evidence, there is a strong argument that the expert’s opinion is simply a conduit to introduce otherwise inadmissible hearsay. See Maklakiewicz v. Berton, 652 So.2d 1208 (Fla. 3d DCA 2009) (officer which served as accident reconstruction expert was not allowed to rely exclusively on hearsay to render expert opinion).

Expert opinion testimony is important in many disputes.  Parties rely on experts to help support their positions or theories of the case.  Hence, knowing what an expert can and cannot rely on in forming their expert opinion plays an important part of the trial process.

P.S.  Wasn’t My Cousin Vinny a fantastic movie?  

 

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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