30 January

Sticky

Expert Cannot Serve as Conduit for Inadmissible Evidence / Hearsay

The law allows an expert to rely on hearsay when formulating expert opinions, but an expert cannot serve as a conduit for inadmissible evidence / hearsay. This point is discussed in the wrongful death action, Dayes v. Werner Enterprises, Inc., 46 Fla.L.Weekly D233b (Fla. 3d DCA 2021), a case that resulted in a defense verdict that was reversed on appeal. The case involved a tractor-trailer backing up and killing someone. The plaintiff (the estate of the deceased person) raised an issue on appeal that it was error for the trial court to allow a detective to testify “that another officer...

11 November

0 Comments

Sticky

The Less Stringent Frye Test is Baaaaack to Determine the Admissibility of Expert Testimony

Posted by David Adelstein

in Expert Testimony

There are two competing tests for a trial court to determine the admissibility of reliable expert testimony / opinions. One method is known as the Daubert test. The other as the Frye test. Both are named after respective cases. The Daubert test is used in federal court. The Frye test was used in Florida until 2013 when the Florida Legislature modified the evidence code to reflect the application of the Daubert test. The Daubert test is widely considered a more stringent test relative to the admissibility of expert opinions at trial where trial courts perform certain gatekeeper functions to determine the reliability of an expert’s methodology (Check this...

20 May

0 Comments

Sticky

Preserving an Objection for Appeal

Posted by David Adelstein

in Appeal, Expert Testimony

Preserving an objection for appeal. Preserving an objection for appeal. Preserving an objection for appeal. Repeat again and again, because this is important. The lack of preservation of an objection is demonstrated in a criminal trial, Pierre v. Florida, 43 Fla.L.Weekly D1110b (Fla. 4th DCA 2018), which involved man wearing a ski-mask attempting to kill his ex-wife. Of course, his ex-wife and son saw his face, but there was other evidence to support the attempted murder. The jury found that the man was guilty of attempted murder. An issue on appeal dealt with the scope of an expert's testimony that tied...

15 February

0 Comments

Sticky

Make Sure Your Expert’s Opinion is Reliable

Posted by David Adelstein

in Uncategorized

I use expert witnesses in many cases. Many. Experts are an important part of cases, particularly complicated disputes where an expert opinion is absolutely warranted. But, as I have discussed in prior articles, an expert's opinion needs to have a foundation of reliability, which is governed by the Daubert standard. Without ensuring that an expert's opinion is reliable, then parties will hire the Joe Blows of the world, pay them a minimal dollar amount, for an outrageous, unsupported, and unqualified opinion. This, of course, provides no value. Hence, the Daubert standard or test "requires that '[t]he testimony is based upon sufficient...

07 April

0 Comments

Sticky

Difference Between Lay Opinion Testimony and Expert Opinion Testimony

Posted by David Adelstein

in Appeal, Evidence, Standard of Review

Although I have numerous blog articles regarding the appellate standard of review when it comes to the admissibility of evidence, it is important to remember that “[a] trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion; however, the trial court’s interpretation of the evidence code is reviewed de novo.” L.L. v. The State of Florida, 41 Fla.L.Weekly D854a (Fla. 3d DCA 2016). In L.L., a criminal case, a police officer testified that he smelled the strong odor of marijuana from the defendant and that a plastic bag in defendant’s possession contained marijuana. The defendant objected...

29 January

0 Comments

Sticky

You Cannot Contradict Testimony with Affidavit Testimony in Response to Summary Judgment

Posted by David Adelstein

in Appeal, Expert Testimony

Preparing expert witnesses for deposition is vital. To this end, working with an expert witness to ensure their expert opinions fit within the context and theme of your case and burden of proof is equally vital. Not doing so can be fatal to your case. This can lead to unprepared testimony or opinions that may appear innocuous but are in fact detrimental to your claims. For example, in the recent opinion in Lesnik v. Duval Ford, LLC, 41 Fla.L.Weekly D281a (Fla. 1st DCA 2016), the plaintiff’s expert witness was deposed. The case involved a single vehicle accident where the plaintiff asserted claims...

13 January

0 Comments

Sticky

Experts Cannot Tell the Jury How to Decide the Case

Posted by David Adelstein

in Expert Testimony

Previously, I discussed the employment litigation case of Mootry v. Bethune-Cookman University, Inc., 41 Fla. L. Weekly D146a (Fla. 5th DCA 2015) involving a terminated professor suing the University that fired him. Check it out here. In this case, the University called an outside counsel as an expert employment attorney that advised it in the termination of the professor. The lawyer testified that in her expert opinion the University had cause to terminate the professor. The appellate court held it was error to admit this testimony because the testimony was essentially telling the jury how to decide the case, particularly,...

12 September

0 Comments

Sticky

Expert Witnesses can Rely on Hearsay….But…

Posted by David Adelstein

in 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...

24 July

0 Comments

Sticky

Using Deposition of Expert Witness at Trial and Reading Portion of Deposition Transcript

Posted by David Adelstein

in Depositions, Evidence, Expert Testimony

Expert witnesses are an important part of civil trials (and criminal trials). Parties utilize expert witnesses at trial to render expert opinions. But, a testifying expert does not need to be at trial live (or, in person) to render an expert opinion. Florida Rule of Civil Procedure 1.330(a)(3) provides in pertinent part: “The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:…(F) the witness is an expert or skilled witness.” Similarly, Florida Rule of Civil Procedure 1.390(b) provides: “The testimony of an expert…witness may be taken at any time...

11 January

0 Comments

Sticky

Expert Opinion Testimony and the Standard of Appellate Review

Posted by David Adelstein

in Appeal, Expert Testimony, Standard of Review

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...