Synopsis: Since the adoption of § 490.065, RSMo, in 1989, Missouri trial courts have been given broad discretion on the qualifications of an expert, the admission of expert testimony and the manner in which such testimony may be presented. Missouri courts have interpreted the statute as calling for the liberal admission of expert testimony. It is unclear, however, whether Missouri courts will adopt the Daubert test followed in federal courts. This article will discuss recent cases that have examined the parameters of expert testimony.
I. Expert Testimony Permitted on Scientific, Technical or Other Specialized Matters
Section 490.065(1), RSMo 1989, states:
In any civil action, 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.1
A. Expert Testimony Not Permitted on Matters of Common Knowledge or Experience
In Van Meter v. Dahlsten Truck Line,2 the court held that while
expert testimony is admissible in a civil action if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue . . . [i]f the subject of the expert's testimony is within the knowledge or experience of lay people, however, the expert testimony is not required and is superfluous. Additionally, when enough information is given to the fact finder enabling it to evaluate the facts of the case, the expert's opinion is not required. The decision to admit expert testimony is within the discretion of the trial court, and it will not be overturned unless such discretion is abused.3
In Van Meter, the trial court did not abuse its discretion by excluding expert testimony offered by plaintiff that the defendant driver violated the standard of care for truck drivers by moving the truck with doors unlatched and also on what the truck driver could have seen in his mirrors. The appellate court concluded that this testimony was unnecessary and not so "specialized or removed from the scope of common knowledge or experience as to require an expert's opinion."4
If the subject matter of the expert testimony is one of everyday experience, where the jurors are competent to decide the issues, then opinion testimony is properly rejected. For example, expert testimony on the issue of the maintenance of a roadside ditch was one of every day experience that jurors are competent to decide.5 On the other hand, where it is indicated in responses during voir dire that the jury has no substantial knowledge of the subject matter of the case, the trial court can conclude the expert testimony would aid the jury in understanding and deciding factual issues beyond its common experience.6 Admission by the trial court of expert testimony has been upheld in a product liability case on the issue of warnings,7 and in an automobile accident case on the issue of the driver's vision being impaired by the glare from oncoming headlights.8 "An expert's testimony is admissible on those subjects about which the jury lacks experience or knowledge and which will assist the jury, unless it unnecessarily diverts the jury's attention from the relevant issues."9
Where a jury of lay people cannot form an intelligent opinion without the aid of expert testimony, expert testimony is generally admissible.10 If the "subject on which [an] expert is to testify is one within [the] knowledge or experience of laypeople, expert testimony is not required and is superfluous because [the] fact finder is competent to decide [the] issue without [the] aid of expert opinion testimony."11
In federal cases, the "question of whether expert testimony should be admitted or excluded is a matter governed by federal, rather than state, law."12 Federal Rule of Evidence 702 favors admissibility if the testimony will assist the trier of fact,13 and doubts regarding "whether an expert's testimony will be useful should generally be resolved in favor of admissibility."14
Generally, a lay witness may not testify by giving an opinion on a matter in dispute. The rationale underlying this opinion rule is that since the lay witness does not possess specialized knowledge of the matter, the lay witness and the jury are in equal positions to form an accurate opinion. Courts have, however, created an exception to the opinion rule by allowing lay witnesses to testify as to their opinion if the lay witness is in possession of knowledge that the jury does not possess.15
B. Expert Testimony Permitted on Ultimate Issue - Maybe!
Section 490.065(2), RSMo 1989, states:
Testimony by such an expert witness 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.16
While § 490.065, RSMo 1989, calls for liberal admission of expert testimony, "the trial court does not usually commit reversible error by mere exclusion of expert testimony, even if the offered testimony is relevant and admissible."17 Expert testimony on the issue of accident reconstruction18 and on point of collision19 are inadmissible under § 490.065, RSMo 1989. The modern-day juror is just as capable of determining from the evidence the point of collision and making a correct analysis of what happened as is the expert.20 Although § 490.065, RSMo, makes it clear that an expert's opinion is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact, it is also clear that the expert's opinion must be otherwise admissible. "[I]f the subject matter of the hypothetical is one with which the jurors would not likely be conversant and where the expert's opinion would be of value to them, then it is no valid objection that the opinion is upon the ultimate jury issue (or is conclusory) or that it invades the province of the jury."21
In Peterson v. National Carriers, Inc.,22 the court held that "[w]hile Missouri does not permit an expert witness to offer his or her expert opinion as to the point of impact, . . . Missouri does not prohibit a fact witness from testifying to point of impact." An expert may, however, testify about speed, stopping distances, skid marks and other aspects of an automobile collision without stating an opinion as to where the point of impact occurred.23
Generally, an expert opinion on the law is not admissible because such testimony encroaches on the function of the judge to instruct the jury.24 In Wulfing v. Kansas City Southern Inds.,25 "the court allowed testimony of a lawyer witness who was qualified as an expert in . . . securities transactions. The court reasoned that expert testimony on complex procedural matters is permissible to allow the jury to evaluate the conduct of the parties." Similarly, the testimony of an attorney on procedural matters involving the enforcement of a bond was admissible where the testimony did not go to the ultimate fact for the jury as to whether the bond was valid.26
C. Expert Testimony on Causation
"The testimony of a physician concerning a diagnosis of a patient is admissible even when it is not based on a reasonable degree of medical certainty. . . . The terms 'think,' 'guess,' or 'suggest,' do not render an expert witness's testimony inadmissible if the expert intended to express his opinion or judgment."27
In Baker v. Guzon,28 the court discussed the sufficiency of expert testimony in a medical malpractice action. The expert testified that the negligence of the defendant doctor "more probably than not" caused and "did" cause the patient's death. The court held that this testimony was sufficient to create a submissible case of negligence against the defendant doctor. In a lengthy discussion, the court concluded that the expert's testimony sufficiently established a causal linkage between the doctor's negligence and the patient's death. The witness's testimony met the "but for" test; there was a scientific basis for his opinion, and his opinion was based on reasonable (not absolute) medical certainty. It was sufficient to establish the "substantive causal evidence" linking the patient's death to the defendant's negligence.29
Thus, even though Missouri courts have held that to establish causation the tort feasor's conduct must be both the cause in fact and the proximate, or legal, cause of the plaintiff's injury,30 there is still some uncertainty as to what quantum or percentage of probability is necessary to meet the "but for" test for causation. In Baker, the expert's testimony that the defendant's negligence "more probably than not" caused the patient's death might not have been sufficient to meet the "but for" had he not also stated that it "did" cause the patient's death.
The recent case of Landers v. Chrysler Corp.31 reaffirmed not only the broad discretion of the trial court to admit expert testimony, but also the expanded scope of expert testimony. In this worker's compensation case, the Court of Appeals upheld the trial court's admission of testimony by a psychologist regarding the causal relationship between the claimant's mental injuries and his accident. The court noted that other jurisdictions have split on the issue of whether a neuropsychologist is qualified to testify as to causation of a brain injury. Recognizing the intent and purpose of § 490.065, RSMo, the appellate court upheld the admission of this testimony.
Initially, the Landers court noted that evidence of a causal connection between an accident and the injury may be established by the testimony of lay witnesses when the facts fall within the realm of lay understanding. "An injury, however, may be of such a nature that expert opinion is necessary to show that it was caused by the accident to which it is assigned."32 "Medical causation, which is not within the common knowledge or experience of lay understanding, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause."33
While observing that some jurisdictions do not allow psychologists to testify regarding medical causation because they are not medical doctors, the court noted that a majority of jurisdictions have permitted a psychologist to give expert testimony regarding the causation of brain injuries. The court concluded that although Missouri has not adopted Rule 702, § 490.065, RSMo, is "virtually identical" to Rule 702 of the Federal Rules of Evidence and that under § 490.065, expert testimony is properly admissible if it will assist the trier of fact to understand the evidence or to determine a fact in issue.34 "The essential test of expert opinion evidence is whether it will be helpful to the fact finder," and "the admission or exclusion of expert opinion testimony as a matter of trial court discretion."35
An expert witness may be qualified as such by the expert's experience, not just his or her education or license. Medical personnel, other than medical doctors, may be qualified to testify as to matters within the limited and precise range of their medical specialties.36 Reviewing the psychologist's education, knowledge, and experience, the Landers court concluded that his expert testimony as to the causation of the claimant's brain damage should not be excluded simply because he was a psychologist instead of a doctor of medicine.37
D. Expert Testimony on Professional Standard of Care
In spite of the fairly liberal standard applied to qualifying experts, Missouri courts have traditionally been reluctant to permit a member of one profession to testify as an expert about a different profession. Though largely based on deference to the trial court's discretion, an engineer did not qualify as an expert on architectural standards of care,38 and an engineer was also prohibited from testifying as to the standard of care for contractors.39
On the other hand, in an action against a professional engineer based on negligent foundation repairs, the court in Yantzi v. Norton40 held that expert testimony to make a submissible case could come from any person qualified in the field of foundation inspection and repair and such testimony was not required from only a professional engineer. In reaching this conclusion, the court commented that:
where persons with varying types of professional credentials are competent to work in a particular field, . . . then the issue of their competence should be judged by whether they meet the minimum standards of that field. Such knowledge is within the expertise of all those who are qualified to act in that field. For this reason they should be judged not by some standard of care particular to the educational degree or professional license they happen to hold, but rather by the standard applicable to the field in which they have chosen to engage.41
The Yantzi court further recognized that there was "nothing about the engineering field that [made] a professional engineer uniquely qualified to evaluate residential foundations. Rather, persons with a variety of different types of training and experience can be equally expert at residential foundation analysis and repair." In short, the court rejected the defendant's contention that only a professional engineer could testify regarding the standard of care of professional engineers and concluded that others who are recognized as experts in the field of foundation problems could be competent to offer such testimony.42 An expert may not, however, testify as to the credibility of other witnesses.43
II. Expert's Qualifications
It is axiomatic that the determination of the qualifications of an expert witness is within the discretion of the trial court, and that the ruling of the trial court will not be disturbed on appeal unless there has been an abuse of discretion.
Under § 490.065, for a witness to qualify as an expert, "it must be shown that by reason of education or specialized experience the witness possesses a superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of drawing correct conclusions. Substantial practical experience in the area in which the expert is testifying is a permissible source of expertise."44
"The depth and breadth of [an] expert's experience and knowledge are pertinent to the weight to be accorded their testimony, not to the admissibility of their opinion."45 "[W]here persons with varying types of professional credentials are competent to work in a particular field, . . . the issue of their competence should be judged by whether they meet the minimum standards of that field. . . . [T]hey should be judged not by some standard of care particular to [the] educational degree or the professional license they happen to hold, but rather by the standard applicable to the field in which they have chosen to engage."46
III. Foundation for Expert Testimony
A. Missouri Test -- Opinion Must be Fundamentally Supported and Have a Substantial Basis
Section 490.065(3), RSMo 1989, states:
The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.
1. Reasonably Reliable Data Required
To establish a foundation for an expert's testimony, the standards of § 490.065, RSMo, must be met. "To satisfy the statute, a litigant must establish that experts within a specialized area customarily and reasonably rely on the facts or data on which the testifying expert is relying for his or her opinion and that the facts or data are reasonably reliable." The trial judge is normally expected to defer to the expert's assessment of what data is reasonably reliable.47
In general, an expert witness is permitted to state the reasons for his opinion only if the opinion had a "substantial basis" in facts established at trial. In addition, the enactment of § 490.065.3, RSMo 1989, allows a witness to base his opinion upon facts and data perceived by or made known at or before trial, provided that such data is of a type reasonably relied upon by experts in the field. As a rule, when the basis of the expert's opinion is based on information other than personal knowledge, the accepted way to present the opinion of the witness is to present evidence of particular facts from a competent source and then submit them to the witness in the form of a hypothetical question.48
The opinion of an expert witness must not be founded on mere assumption or surmise, but on facts within the expert's knowledge or upon hypothetical questions embracing proven facts. Also, a qualified expert witness may consider facts that are related to him in a hypothetical question or are within his personal knowledge and give his conclusions or opinions based on that information.49
In Holtgrave v. Hoffman,50 the evidence that severance of the plaintiff's spinal cord was attributable to post-accident treatment, rather than to the accident itself, was sufficient to make a submissible case of medical malpractice. The court found that a nurse's note indicating that the plaintiff had been "moving all extremities" shortly after arriving at the hospital provided a substantial basis for the opinion of the plaintiff's medical expert that severance of the spinal cord was attributable to post-accident negligence of the neurosurgeon. In rejecting the defendant's contention that the nurses' note did not provide a substantial basis for the opinion of plaintiff's expert, the Holtgrave court stated:
[A] doctor's opinion, like that of any expert, is in the nature of a conclusion of fact, but it must have a substantial basis in the facts actually established and it cannot be invoked to establish the facts. . . . The question whether an expert's opinion is based upon and supported by sufficient facts in evidence to support the same is a question of law for the court.51
A "medical expert may 'testify and give his opinion either from facts within his own knowledge and observation or from hypothetical facts, or from the two combined.' However, if the expert has personal knowledge, a hypothetical question is unnecessary. . . . However, [the] . . . expert need not be present at the time of injury in order to render an opinion as to the cause of injury based on his personal knowledge." Rather, "the opinion of [an] . . . expert based upon examination and treatment is considered substantial evidence and its weight is for the jury" to determine. Upon review, the question of whether an expert's opinion is based on sufficient facts and whether it is supported by substantial evidence is a question of law which is recognized to be within the sound discretion of the trial court.52
Wulfing v. Kansas City Southern Indus.53 discussed expert testimony in great detail. The court held that, under § 490.065, RSMo, as under Federal Rule 703, an expert's opinion may be based on out of court facts if the facts are of a type reasonably relied upon by experts in the field and the proponent of the evidence satisfies the trial judge that the hearsay facts are otherwise reliable.
Thus, where expert opinion rests in part on factual information not in evidence, the standard objection such as that there is no opportunity to test the credibility of its sources at trial or to cross-examine the witness as to the extrajudicial facts no longer avails, either as to the reasonableness of the foundation for the opinion or to the opinion itself. The questions are, rather, whether the hearsay as tested by professional acceptance standards in the field is reasonably reliable, and whether it is otherwise reasonably reliable as a matter of general evidentiary principle. The first takes the facts and data relied on by experts in the field for an opinion, if reasonable, as sufficient basis of worthiness for reliance, and so excuses them from compliance with the rules of evidence. The second engages the independent responsibility of the trial judge to decide if the foundational facts meet the minimum standards of reliability as a condition of the admissibility of the opinion. As a rule, questions as to the sources and bases of the expert's opinion affect the weight, rather than the admissibility, of the opinion, and are properly left to the jury. In cases where the source upon which the expert relies for opinion is so slight as to be fundamentally unsupported, the jury may not receive the opinion. Such testimony lacks even that modicum of weight as would assist the jury to understand the evidence or to determine a fact in issue.54
"The facts upon which an expert's opinion is based, like the facts sufficient to support a verdict, must measure up to the legal requirements of substantiality and probative force; and the question or whether such opinion is based on and supported by sufficient facts or evidence to sustain the same is a question of law for the court." As held in § 490.065.3, RSMo, "[t]he facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable."55
"An expert opinion expressed by one properly qualified and based upon sufficient means of knowledge is evidence. The province of the jury is to hear all the evidence including opinion evidence, to weigh it all, and to decide the issues. . . . An expert's opinion will not be allowed if it is fundamentally unsupported. . . . [Q]uestions regarding the bases of the expert's opinion affect the weight of the opinion and are issues for the jury to determine."56
In Emerson Electric Co. v. Crawford & Co.,57 Emerson asserted a claim against the claims adjuster engaged by its insurance carrier, and sought recovery for the adjuster's mishandling of a claim against Emerson. Although a judge who reviewed the case recommended that the parties settle for $425,000, the adjuster never offered more than $250,000 and advised Emerson to proceed to trial. At trial, a judgment was entered against Emerson for $775,000.
In the trial of its case against its claims adjuster, Emerson called an attorney to testify who was familiar with automobile liability and personal injury claims in Louisiana. He testified that the offer of $250,000 was unreasonably low and that this claim was mishandled by the defendant adjuster. The appellate court upheld the trial court's admission of this expert testimony.
The attorney had handled between 2,500 and 3,000 automobile accident claims in Louisiana, worked regularly with adjusters' claims and testified that he was familiar with the value of personal injury claims in Louisiana. His qualifications established that he had knowledge beyond that of an ordinary Missouri juror and could aid the jury in its decision-making process. An expert's opinion must aid the jurors in deciding an issue in the case since the expert's qualifications are superior to those of the ordinary juror.58 Substantial practical experience in the area in which the witness is testifying is a permissible source of expertise."59
The appellate court also rejected the defendant's contention that the attorney's testimony contained speculation as to the settlement value of the underlying case. It found that the trial court, acting within its discretion, admitted opinion testimony that was based on and supported by sufficient facts.60 "The attorneys' opinions were based on facts known to him at or before the hearing which others in the field would reasonably rely upon in forming an opinion and therefore, are admissible."61
2. Hearsay Can Be Used if Reasonably Reliable
An expert's testimony may be based "upon matters within his [or her] personal knowledge or observation, upon competent evidence in the case or upon both.62 The trial judge is given wide discretion to allow hearsay evidence as a basis for an expert opinion if that evidence is otherwise trustworthy and necessary. When an expert has gathered sufficient competent evidence to support an opinion, his testimony is not inadmissible merely because he was aware of hearsay evidence, as long as there is no evidence that his opinion was based on hearsay. "An expert necessarily states . . . conclusions about certain matters, which is proper so long as his opinion is not a mere guess or conjecture, but is based on facts and adequate data."63
"An expert is allowed to rely on hearsay to support his or her opinion where the expert testifies that the evidence is of a sort reasonably relied upon by experts in the field and the trial court . . . finds that the evidence . . . is reasonably reliable." In Peterson v. National Carriers,64 the plaintiff in a personal injury action objected to the testimony of the defendant's expert witness regarding speeds, stopping distances and other aspects of the automobile collision that resulted in the plaintiff's injuries. Though not testifying as to the point of impact, the expert did express the opinion that for the accident to have occurred as the plaintiff had testified, the defendant would have been traveling at 300 mph. The expert acknowledged that his opinion was based on the highway patrol officer's report and diagram and the deposition testimony of the plaintiff and the defendant.
The National Carriers court rejected the plaintiff's contention that the testimony of the defendant's expert was based on inadmissible hearsay. The court specifically held that § 490.065.3, RSMo, does not prohibit an expert from relying on hearsay.
Instead, it recognizes the generally accepted principle that an "expert necessarily acquires his knowledge and expertise from many sources, some of which are inadmissible hearsay. Merely because an expert relied on information and opinions of others does not automatically disqualify his testimony. As long as such sources serve only as a background for his opinion and are not offered as independent substantive evidence . . . he should not be precluded from testifying. . . ." This approach is fully consistent with the approach in Federal Rule of Evidence 703. . . .65
Citing Stallings v. Washington University,66 the National Carriers court commented that, as noted in prior cases, although the language of the federal rule is more explicit than the language used in § 490.065.3, they are nearly identical in application. Under Missouri law, "the evidence experts rely on in forming their opinions `need not be independently admissible' so long as it is the type of evidence reasonably relied on by experts in the field and is otherwise reasonably reliable."67 The National Carriers case seems to go further in permitting an expert to "rely" on hearsay evidence than earlier cases, which allowed an expert to consider hearsay but not "base" his or her opinion on it.
B. The Federal Standard - The "Daubert Test"
Rule 702. Testimony by Experts
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.
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.
In Daubert v. Merrell Dow Pharmaceuticals,68 the Supreme Court determined that expert testimony must meet the two-part test of Rule 702 of the Federal Rules of Evidence: (a) It must be reliable -- based on scientific knowledge, and (b) it must be relevant -- of assistance to the trier of fact. Prior to Daubert, the "general acceptance" standard of Frye v. United States69 was closely followed.
In Daubert, the Supreme Court concluded that the Frye test of whether the expert's methods were generally accepted in the relevant scientific community did not survive the enactment of Federal Rule of Evidence 702. Under Daubert, the trial judge may use a variety of sources, including the testimony of experts, in determining whether the evidence meets the "reliability" standard. The broad discretion given to the trial judge must, however, be tempered by the need to determine the reliability of scientific knowledge through its origin, based on scientific methodology. The Supreme Court directed the trial court to consider at least four factors when determining admissibility of scientific evidence: (1) whether the theory or technique can be tested, (2) whether the scientific work has been subjected to peer review, (3) whether the rate of error is acceptable, and (4) whether the method utilized enjoys widespread acceptance.
Recent federal court decisions have reaffirmed that the admissibility of expert testimony lies within the broad discretion of a trial court and will not be reversed on appeal unless there has been an abuse of that discretion.70 Where the trial court has excluded expert testimony, the Court of Appeals is unlikely to reverse. In Jenkins v. Arkansas Power & Light Co.,71 the trial court excluded expert testimony, finding that eyewitnesses would testify about the occurrence, the facts were not complex enough to require an expert, and that the opinions the expert would express were on issues best left for the jury to determine. While noting that "the standards for admission of expert testimony are liberal," the Jenkins court concluded that the trial court correctly determined there was no need for expert testimony.
The Eighth Circuit case of Peitzmeier v. Hennessey Industries, Inc.,72 contains a comprehensive analysis of the Daubert test. In this case, the plaintiff sought damages from the manufacturer of a tire changer for injuries that he received when a tire exploded while he was using the tire changing equipment. The district court excluded the testimony of the plaintiff's expert, finding that such testimony was inadmissible under Federal Rule of Evidence 702, as interpreted under Daubert. The Eighth Circuit found that the district court had not abused its discretion regarding the exclusion of expert testimony.73 The plaintiff alleged that the tire changer was defectively designed and argued that their expert would give opinion testimony that simple design changes to the tire changer would have eliminated the potential for injuries such as that sustained by the plaintiff. The plaintiff further argued that the Daubert test was inapplicable because the expert's opinion was founded upon basic engineering principles, not "novel scientific testimony." The Eighth Circuit rejected this argument, concluding that Daubert did not have such a narrow application.74
In finding that the expert's testimony did not meet the Daubert test, the Peitzmeier court observed that the expert had "never designed, built or tested" the safety devices or modifications that he proposed. Next, the court concluded that none of the expert's proposed changes to the tire changing machine had been subjected to "peer review. While not required for admissibility, submission to the scrutiny of the scientific community is a component of 'good science,' in part, because it increases the likelihood that substantive flaws and methodology will be detected."75 The court specifically rejected the plaintiff's contention that their expert's theories had been subjected to peer review in the form of cross-examination during the expert's other court appearances at which he testified about them, finding that this could not take the place of scientific peer review. Because the expert's concepts were untested in the scientific community, his testimony about proposed design changes would have been speculative. Finally, the court determined that because the expert's theories had not been tested, the final two Daubert factors of "the known or potential rate of error" and the "general acceptance in the scientific community" were also unmet. This case illustrates the scrutiny with which the federal appellate court will review the trial court's discretion on expert testimony and be more inclined to find no abuse of discretion where expert testimony has been excluded for failure to meet the Daubert test.76
On the other hand, the federal courts have shown a greater tendency to find trial court abuse of discretion in admitting expert testimony where the expert has not complied with each of the four factors in Daubert. This was recently illustrated in Robertson v. Norton Co.77 In this case, the plaintiff's expert testified that the grinding wheel, which exploded and injured the plaintiff, was unreasonably dangerous because the product warnings on the wheel were completely inadequate to explain improper use. Reviewing the district court's decision to admit expert testimony for abuse of discretion, the Eighth Circuit found such abuse under the Daubert test.
Initially, the court noted problems with expert testimony regarding the adequacy of product warnings.79 While acknowledging that the expert was qualified to testify about a manufacturing defect, he was not qualified as an expert on warnings, since he had never designed a warning for a product of this type. Second, the expert's testimony "was not supported by the kind of scientific theory, practical knowledge and experience, or empirical research and testing that permit assessment 'of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.'"80 The expert's opinion was not sufficiently reliable under Daubert.81
The Robertson court also noted that the expert's "opinion squarely addressed an ultimate issue of fact. Although that is permissible, see Fed. R. Evid. 704(a), courts must guard against 'invading the province of the jury on a question which the jury was entirely capable of answering without the benefit of . . . expert opinion.'"82 Finally, the court concluded that the expert's opinion testimony was unfairly prejudicial. The inadequate warning claims based on the expert's testimony were emphasized in opening and closing arguments. The Eighth Circuit concluded that the district court abused its discretion in admitting this opinion testimony and granted the defendant a new trial.
Similarly, in Nichols v. American Nat'l Ins. Co.,83 the Eighth Circuit held that the trial court erred in permitting the defendant's expert to testify on the "psychiatric credibility" of the plaintiff. The psychiatrist engaged by defendant testified that plaintiff was a malingerer and was influenced by recall bias and secondary gain.
"Before admitting proferred expert testimony the trial court must ensure that it is scientifically valid -- that it is both reliable and relevant. . . . The relevancy of the testimony depends upon whether it can properly be applied to assist the trier of fact to decide facts in issue. Such evidence is not helpful if it draws inferences or reaches conclusions within the jury's competence or within an exclusive function of the jury."84
In finding that the "psychiatric credibility" testimony of defendant's expert was not a proper subject for expert testimony under Fed. R. Evid. 702, the Eighth Circuit concluded that the expert's theories failed to meet the Daubert criteria and went to the "heart of the jury's task" -- could the plaintiff be believed?85 "Opinions of this type create a serious danger of confusing or misleading the jury, see Fed. R. Evid. 403, causing it to substitute the expert's credibility assessment for its own common sense determination."86 The expert went beyond the "permissible areas" of expert testimony by making thinly valid comment on the plaintiff's credibility; weighing evidence and determining credibility are tasks exclusive to the jury and an expert should not offer an opinion about the truthfulness of witness testimony.87
C. Will Missouri Follow Frye or Daubert?
"To determine the admissibility of expert testimony, Missouri applies the test formulated in Frye v. United States.88 Under that test, the results of scientific procedures may be admitted only if the procedure is 'sufficiently established to have gained general acceptance in the particular field to which it belongs.'"89 Although many appellate court decisions in Missouri have recognized that § 490.065, RSMo, is nearly identical to Federal Rule 702, Missouri courts have not adopted the judicially created Daubert test for determining the admissability of expert testimony.
The testimony of a consumer psychologist was found to be admissible where the plaintiff recovered a jury verdict for $3,000,000 in lost profits. In Whitman's Candies, Inc. v. Pet, Inc.,90 the plaintiff sought the recovery of damages due to the defendant's failure to continue its policy of buying back old candy from its retailers after it had agreed to sell its candy business to the plaintiff. The plaintiff introduced evidence showing that more than 400,000 boxes of outdated chocolate manufactured by the defendant had been sold since the defendant discontinued its freshness policy and that numerous retail consumers complained about having to throw out stale, outdated candy. The plaintiff's expert had more than 20 years' experience in studying consumer responses, had published more than 100 articles on consumer psychology and was the author of a leading textbook on consumer satisfaction. He determined that, as a result of the defendant's sale of 400,000 boxes of stale candy, the plaintiff would lose sales of 2.711 million boxes of candy with a profit margin of $1.79 per box, causing damages to the plaintiff in the amount of $4,852,690. The Court of Appeals rejected the defendant's contention that the expert testimony was too speculative and that his methodology did not meet minimum standards of reliability.
Initially, the court noted that, "[t]he Supreme Court of Missouri has yet to address whether §490.065 supplants the Frye test in Missouri as the standard for admission of expert testimony."91 Because the expert testimony in this case met both the Frye and Daubert requirements, it was not necessary for the court to determine whether § 490.065, RSMo, supersedes the Frye test in Missouri.92 The Whitman court went on to observe that although there have not been an abundance of cases ruling upon expert testimony of consumer psychologists, "the cases which have involved consumer psychologists have generally held their expert testimony to be admissible."93
Noting that the Daubert test "requires the trial court to consider four factors: (1) whether the theory can be objectively proven, (2) whether the expert's methodology has been subject to peer review, (3) the potential rate of error, and (4) whether the expert's work has been generally accepted in the scientific community", the court also commented that the Frye decision only requires compliance with basically "the fourth prong of the Daubert test." While not specifically analyzing each of the four components of the Daubert test, it did hold, "[u]pon review of the factors set out in Daubert, this court can not say that the expert testimony was so unreliable as to be inadmissible."94 In response to the defendant's arguments, the court noted that the defendant could have called its "own expert regarding the psychology of consumers" and that even if the plaintiff's expert's testimony was inconclusive on certain subjects, that did not make it "either inadmissible or devoid of probative value."95 Under the abuse of discretion standard, i.e. so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration -- the court found that the trial court did not abuse its discretion in allowing the expert testimony.96 Thus, while the Missouri appellate courts have commented on the Daubert test, no decision has adopted it. Consequently, the liberal admission of expert testimony (and affirmance of the trial court discretion) is more likely to be found in state courts.
IV. Hypothetical Question
Section 490.065(4), RSMo 1989, states:
If a reasonable foundation is laid, an expert may testify in terms of opinion or inference and give the reasons therefor without the use of hypothetical questions, unless the court believes the use of a hypothetical question will make the expert's opinion more understandable or of greater assistance to the jury due to the particular facts of the case.
A. Not Required in All Cases
Under § 490.065, RSMo, "hypothetical questions are no longer necessary unless the court believes their use would make the expert's opinion more understandable or of greater assistance 'to the jury.'" While the "omission or exclusion of expert testimony is within the discretion of the trial court and will not be interfered with unless it plainly appears that the discretion is abused, . . . the question of whether such [an] opinion is based on and supported by sufficient facts or evidence is a question of law for the court."97
B. Must Justify Theory of Case and Be Supported by Evidence
If used, "[a] hypothetical question must be based on facts supported by the evidence" so that when the question is answered it will not present an unfair picture to the jury. In Baker v. Gordon,98 the court found prejudicial error where the hypothetical question posed to the doctor required him "to assume as true a fact which he denied as true, based on his personal knowledge." The court found that such a practice was patently wrong in that it conveyed an unfair picture to the jury.
Where the opinion of the expert is drawn from a hypothetical question required because the expert lacks personal knowledge of all material facts, it is error to admit the testimony if the question does not embody substantially all of the material facts relating to the subject or omits necessary elements. The hypothetical question need not include all material facts in evidence but it must fairly hypothesize the material facts reasonably relevant to and justly presenting the questioner's theory of the case so that an answer of assistance to the jury in proper determination of the case may be elicited.99
"Missouri trial courts exercise broad discretion in the matter of sufficiency of hypothetical questions to an expert witness. For an opinion to be proper, however, it must be based on sufficient facts and supported by substantial evidence."100 "The sufficiency of a hypothetical question is addressed to the sound discretion of the trial court. However, when an expert is asked to assume certain facts as true in order to answer a hypothetical question, those facts must be established by the evidence."101
In Hobbs v. Harken,102 the hypothetical question asked of the plaintiff's expert witness included the assumption that the inner ear problems the plaintiff suffered due to the accident would continue for 20 years. Since that assumption was not supported by the evidence, the expert's opinion was inadmissible. The court held that:
[w]here, as here, an opinion is hypothetical in nature, it "must not be founded on mere assumption or surmise, but on facts within the expert's knowledge or upon hypothetical questions embracing proven facts." . . . [T]he manner in which the question was put to (the expert) below would have been adequate if the injuries which (the expert) assumed affected (plaintiff's) earning capacity were established by the testimony of medical experts. This is because an expert can base his opinion on hypothesized facts if the facts are "either in the record or admissible as evidence. . . . However, it is also a prerequisite that 'when an expert is asked to assume certain facts are true in order to answer a hypothetical question, those facts must be established by the evidence.'"103
Since there was no medical evidence that the plaintiff's ear condition would continue for 20 years, the expert's opinion in estimating future damages "lacked a substantial evidentiary basis for his assumption that, to a reasonable degree of medical certainty," the plaintiff's ear injury would persist unabated for 20 years. Thus, the trial court erred in admitting the expert's opinion.
V. Cross-Examination of Expert
Cross-examination to show bias and prejudice on the part of the expert is within the trial court's discretion.104 The pecuniary interest and compensation received by an expert from one of the parties is generally admissible.105
It is proper to cross-examine a medical expert with medical textbooks and treatises where there is evidence that the text or treatise so employed is authoritative. To be authoritative, there must be some evidence of general acceptance and accreditation of the text or treatise within the profession. "Evidence of the authoritative nature of the text or treatise may be (a) conceded by the witness himself, or (b) established by judicial notice, or (c) established by other experts in the field."106
"[U]nder Missouri law it is proper to cross-examine a medical expert by framing a proposition in the exact language of the author" of the text or treatise and asking the expert whether he agrees with the proposition.107 The mere fact that the expert witness states that he is unfamiliar with the particular treatise or text does not make the use of that text in cross-examining the expert inappropriate.
Federal courts have held that, once expert testimony has been admitted, the rules of evidence then place "the full burden of exploration of the facts and assumptions underlying the testimony of an expert witness squarely on the shoulders of opposing counsel's cross-examination" and it is the burden of opposing counsel to explore any weaknesses in the underpinnings of the expert's opinion.108 Opposing counsel is free to cross-examine the expert as to all documents the expert reviewed in establishing her or his opinion.109
VI. Discovery Regarding Experts
A. Witness Engaged for Litigation Must be Disclosed as Expert
It is within the trial court's discretion as to appropriate remedy for failure to specifically disclose an expert in answer to interrogatories or in response to a scheduling order. Although it is common practice to reserve the right to call the experts of another party, this may not always be sufficient.110
There is no prohibition to calling an opposing party's expert witness at trial. If the party calling such witness has failed to previously discover through 56.01(b) the facts known by and opinions of such witness, then of course, that party runs the risk that he will be bound by unfavorable testimony.111
"[A] trial court has broad discretion to control discovery." "Untimely disclosure or nondisclosure of expert witnesses is so offensive to the underlying purposes of the discovery rules that prejudice may be inferred." The sanctions available to the trial court under Rule 61.01 "include, but are not limited to, striking pleadings, dismissing the action, or by rendering a judgment by default against the disobedient party."112
Witnesses who have personal knowledge of events, and who are not engaged by a party in anticipation of litigation, are not expert witnesses whose identity must be disclosed before trial. If some of the witnesses to the events of a case, make use of "their learning and experience for conclusions and opinions, and could in that sense be called 'expert testimony', that does not make them 'expert witnesses' within the meaning of Rule 56.01(b)(4)."113
B. Expert's Changed Opinion
"[W]hen an expert witness has been deposed and he later changes his opinion before trial or bases that opinion on new or different facts from those disclosed in the deposition, it is the duty of the party intending to use the expert witness to disclose that new information to his adversary, thereby updating the responses made in the deposition."114
Under such circumstances, a trial court, in its discretion, may give the opposing party an opportunity to interview the witness before he is permitted to testify. When the opportunity to interview the witness is afforded, the opposing party should avail himself of that opportunity and if the result is not a satisfactory preparation to meet the testimony, he may then request other relief. "[A]rbitrary exclusion of all evidence in such cases is not the only option available to the trial court, although that sanction is open. The very nature of the discretion vested in the trial court recognizes that each case must be determined on its own peculiar facts which bear on the question of whether that discretion has been abused."115
C. Expert's Income Discoverable
In State ex rel. Creighton v. Jackson,116 the court held that the income tax returns reflecting the income an expert received during the past five years from services as a consultant or witness were within the scope of discovery as impeachment information.
The trial court should, of course, restrict such discovery so that it is no more intrusive than necessary. Counsel should never be permitted to harass, badger and humiliate the . . . witness with inquiries not strictly necessary to the discovery of matters relevant to professional objectivity. . . . A delicate balancing of privacy interests against the need for accountability therefore becomes the responsibility of the trial court.
The fees earned by an expert witness for testifying in cases bears materially on the witness's credibility and is appropriate impeachment evidence.117 The trial judge has discretion to allow testimony as to the amount of annual income derived from employment as an expert witness. Evidence that a witness makes substantial income from testifying illuminates the financial interest the expert has in giving such testimony.
VII. Summary
Although Missouri courts have not specifically followed Federal Rules of Evidence 702 and 703, § 490.065, RSMo, is similar to those rules. While the Missouri statute allows for the liberal admission of expert testimony on matters that are not within the knowledge of lay people, the expert's opinion must be fundamentally supported by facts and data that are reasonably reliable. Although, theoretically, an expert's testimony on an ultimate issue is admissible, Missouri courts have been reluctant to admit such testimony. It appears that the federal appellate courts take a more conservative approach toward the admission of expert testimony than do the Missouri appellate courts, and are less reluctant to find a trial court abused its discretion in admitting such testimony. It is unclear whether Missouri courts will follow the Daubert test or the more liberal Frye standard, which is no longer followed in federal courts.
Endnotes
1 See also Missouri Supreme Court Rule 56.01(b)(5) (Non-Retained Experts), which states:
For the purpose of this Rule 56.01(b)(5), an expert witness is a witness qualified as an expert by knowledge, experience, training, or education giving testimony relative to scientific, technical or other specialized knowledge that will assist the trier of fact to understand the evidence.
See also Rule 702 Federal Rules of Evidence which states:
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.
2 943 S.W.2d 680 (Mo. App. W.D. 1997).
3 Id. at 682, citing Jake C. Byers, Inc. v. J.B.C., Investments, 834 S.W.2d 806, 818 (Mo. App. W.D. 1992). See also Donjon v. Black & Decker (U.S.), Inc., 825 S.W.2d 31, 32 (Mo. App. E.D. 1992) ("In order for a witness to be qualified as an expert, it must be shown that by reason of education or specialized experience, the witness possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of drawing correct conclusions."), and Cole v. The Goodyear Tire & Rubber Co., 967 S.W.2d 176 (Mo. App. E.D. 1998).
4 Id. See also MacDonald v. Sheets, 867 S.W.2d 627, 630 (Mo. App. E.D. 1993) (an expert must have "knowledge, skill, experience, training or education" supporting his or her opinion, which is intended to aid the trier of fact, citing § 490.065, RSMo); State ex rel. Jefferson County v. Watson, 867 S.W.2d 223, 228 (Mo. App. E.D. 1993). (If, based on the witness's "knowledge, wisdom, or skill" regarding the relevant subject matter, acquired by "investigation, observation, practice or experience," the testimony should be permitted; "the extent of an expert's experience or training in a particular field goes to the weight of the testimony and does not [necessarily] render the testimony incompetent").
5 Coppedge v. Missouri Highway & Transp. Comm'n, 809 S.W.2d 164, 167 (Mo. App. E.D. 1991), citing Wessar v. John Chezik Motors, Inc., 623 S.W.2d 599, 602 (Mo. App. W.D. 1981). See also Middleton v. Benne, 849 S.W.2d 265 (Mo. App. E. D. 1993) (evidence of flooding sufficient to show culvert was defective; expert testimony not required).
6 Ryan v. Parker, 812 S.W.2d 190 (Mo. App. W.D. 1991).
7 Cole v. The Goodyear Tire & Rubber Co., 967 S.W.2d 176 (Mo. App. E.D. 1998).
8 Wellman v. Wehmeyer, 965 S.W.2d 348, 352 (Mo. App. E.D. 1998), citing State ex rel. Division of Family Services v. Guffey, 795 S.W.2d 546, 551 (Mo. App. S.D. 1990) (an expert witness is allowed to testify upon matters within his personal knowledge or observation, upon competent guidance in the case, or upon both). (In his dissent in Wellman, Judge Blackmar characterized the expert's testimony as tantamount to inadmissible accident reconstruction testimony).
9 Peterson v. National Carriers, Inc., 972 S.W.2d 349, 354 (Mo. App. W.D. 1998).
10 Metropolitan Ice Cream Co. v. Union Mut. Fire Ins. Co., 216 S.W.2d 464 (Mo. banc 1949).
11 Jake C. Byers, Inc. v. J.B.C., Invs., 834 S.W.2d 806, 807 (Mo. App. E.D. 1992).
12 Fox v. Dannenberg, 906 F.2d 1253, 1255 (8th Cir. 1990).
13 Justice v. Carter, 972 F.2d 951, 957 (8th Cir. 1992).
14 Larabee v. MM&L Int'l Corp., 896 F.2d 1112, 1116 (8th Cir. 1990).
15 Mohr v. Mobley, 938 S.W.2d 319, 321 (Mo. App. W.D. 1997).
16 See also Fed. Rule of Evidence 704(a), which states: "Except as provided in subdivision (b), 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." (Subdivision (b) prohibits an expert witness from testifying about the mental state or condition of a defendant in a criminal case).
17 Inman v. Bi-State Development Agency, 849 S.W.2d 681, 683 (Mo. App. E.D. 1993), citing Huelster v. St. Anthony's Medical Ctr., 755 S.W.2d 16, 17 (Mo. App. E.D. 1988).
18 Inman, Id. at 683.
19 Williams v. McCoy, 854 S.W.2d 545 (Mo. App. S.D. 1993); Housman v. Fiddyment, 421 S.W.2d 284 (Mo. banc 1967).
20 See also Peterson v. National Carriers, 972 S.W.2d 349 (Mo. App. W.D. 1998).
21 Coppedge v. Missouri Highway & Trans. Comm., supra, and Ryan v. Parker, supra. See also Stephens v. Guffey, 409 S.W.2d 62, 70 (Mo. 1966) (It is not "improper to ask an expert witness if something might, could, or would produce a certain result. An expert's view of possibility or probability is often helpful and proper").
22 972 S.W.2d 349 (Mo. App. W.D. 1998).
23 Id. at 356. In Fieser v. Snyder, 797 S.W.2d 752, 754 (Mo. App. E.D. 1990), such testimony was admitted over an objection that it constituted a backhand method of introducing expert testimony on point of impact.
24 See George Weis Co., Inc. v. Dwyer, 956 S.W.2d 335, 339 (Mo. App. E.D. 1997).
25 842 S.W.2d 133, 153 (Mo. App. W.D. 1992).
26 George Weis Co., Inc. v. Dwyer, supra.
27 Stevens v. Craft, 956 S.W.2d 351, 354 (Mo. App. S.D. 1997), citing Johnson v. Creative Restaurant Management, 904 S.W.2d 455, 459 (Mo. App. W.D. 1995), and Lineberry v. Shull, 695 S.W.2d 132, 136 (Mo. App. W.D. 1985).
28 950 S.W.2d 635 (Mo. App. E.D. 1997).
29 See also Schiles v. Craft, 710 S.W.2d 254 (Mo. App. E.D. 1986). See also Tompkins v. Cervantes, 917 S.W.2d 186, 189 (Mo. App. E.D. 1996)
(When a party relies on expert testimony to provide evidence as to causation when there are two or more possible causes, that testimony must be given to a reasonable degree of certainty. When an expert merely testifies that a given action or failure to act "might" or "could have" yielded a given result, though other causes are possible, such testimony is deviod of evidentiary value).
30 See Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852 (Mo. banc 1993).
31 963 S.W.2d 275 (Mo. App. E.D. 1997).
32 Id. at 279.
33 Id. citing McGrath v. Satellite Sprinkler Sys., 877 S.W.2d 704, 708 (Mo. App. E.D. 1994).
34 Id. at 281.
35 Id. at 281, citing State ex rel. Lichtor v. Clark, 845 S.W.2d 55, 59 (Mo. App. W.D. 1992), Strucker v. Chitwood, 841 S.W.2d 816, 819 (Mo. App. S.D. 1992), and Wingate v. Lester E. Cox Medical Ctr., 853 S.W. 912, 918 (Mo. banc 1993).
36 Id. at 282, citing Sigrist By and Through Sigrist v. Clarke, 935 S.W.2d 350, 357 (Mo. App. S.D. 1996), and Childs v. Williams, 825 S.W.2d 4, 10 (Mo. App. E.D. 1992).
37 "When non-doctors are called to testify on the standard of care of a physician, the proponent must first show the 'rather unusual' circumstances that make the witness qualified to render an opinion on the doctor's action". See Shoemaker v. Ekunno, 960 S.W.2d 527 (Mo. App. E.D. 1998), and Fields v. Curators of the University of Mo., 848 S.W.2d 589, 590 (Mo. App. W.D. 1993).
38 Brennan v. St. Louis Zoological Park, 882 S.W.2d 271, 273 (Mo. App. E.D. 1994).
39 IMR Corp. v. Hemphill, 926 S.W.2d 542, 544 (Mo. App. E.D. 1996).
40 927 S.W.2d 427 (Mo. App. W.D. 1996).
41 Id. at 432.
42 Id. See also National Cash Register Co. v. Haak, 335 A.2d 407 (Pa. 1975) (cited in Yantzi). (The Yantzi court rejected the holdings of Annen v. Trump, 913 S.W.2d 16 (Mo. App. W.D. 1995), and Pasta House Co. v. Williams, 833 S.W.2d 460 (Mo. App. E.D. 1992), as not addressing the precise issue in this case).
43 Peterson v. National Carriers, Inc., 972 S.W.2d 349, 357 (Mo. App. W.D. 1998). See also State v. Sloan, 912 S.W.2d 592, 596 (Mo. App. E.D. 1995), and State v. Whitmill, 780 S.W.2d 45, 47 (Mo. banc 1989).
44 Donjon v. Black & Decker (U.S.), Inc., 825 S.W.2d 31 (Mo. App. E.D. 1992). See also IMR Corp. v. Hemphill, 926 S.W.2d 542 (Mo. App. E.D. 1996) (A "[p]erson with substantial practical and specialized experience in [a] given area may qualify as an expert in that field.")
45 Schreibman v. Zanetti, 909 S.W.2d 692, 697 (Mo. App. W.D. 1995).
46 Yantzi v. Norton, 927 S.W.2d 427 (Mo. App. W.D. 1996).
47 Schreibman v. Zanetti, 909 S.W.2d 692, 698 (Mo. App. W.D. 1995).
48 Stallings v. Washington Univ., 794 S.W.2d 264 (Mo. App. E.D. 1990); Smith v. Kovac, 927 S.W.2d 493 (Mo. App. E.D. 1996).
49 Lazane v. Bean, 782 S.W.2d 804 (Mo. App. W.D. 1990).
50 716 S.W.2d 332 (Mo. App. E.D. 1986).
51 Id. at 335, citing Butcher v. Main, 426 S.W.2d 356, 359 (Mo. 1968), and Vosevich v. Doro, Ltd., 536 S.W.2d 752, 760 (Mo. App. E.D. 1976).
52 Kummer v. Cruz, 752 S.W.2d 801 (Mo. App. E.D. 1988).
53 842 S.W.2d 133 (Mo. App. W.D. 1992).
54 Id. at 151-52.
55 Spain v. Brown, 811 S.W.2d 417 (Mo. App. E.D. 1991). See also Coppedge v. Missouri Highway and Transp. Comm'n, 809 S.W.2d 164 (Mo. App. E.D. 1991) ("An expert's opinion must be based either upon facts within the expert's personal knowledge and observations or upon facts supported by competent evidence.")
56 Stone v. City of Columbia, 885 S.W.2d 744 (Mo. App. W.D. 1994).
57 963 S.W.2d 268 (Mo. App. E.D. 1997).
58 Id. at 271, citing Sampson v. Missouri Pacific R.R., 560 S.W.2d 573, 586 (Mo. banc 1978).
59 Id. citing Donkon v. Black & Decker (U.S.), Inc., 825 S.W.2d 31, 32 (Mo. App. E.D. 1992).
60 Id. citing Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 208 (Mo. banc 1991).
61 Id. at 272, citing § 490.065.3, RSMo 1994, and Wulfing v. Kansas City Southern Indus., Inc., 842 S.W.2d 133, 151 (Mo. App. W.D. 1992).
62 Wellman v. Wehmeyer, 965 S.W.2d 348 (Mo. App. E.D. 1998); Division of Family Services v. Guffey, 795 S.W.2d 546, 551 (Mo. App. S.D. 1990).
63 Stock v. Bhati, 773 S.W.2d 490 (Mo. App. S.D. 1989).
64 972 S.W.2d 349 (Mo. App. W.D. 1998).
65 Id. at 354, citing State v. Delmar Gardens of Chesterfield, 872 S.W.2d 178, 182 (Mo. App. E.D. 1994), and Graham, Handbook of Federal Evidence, § 703.1 (3d ed. 1991)
Under Rule 703, facts, data or opinions reasonably relied upon under Rule 703 may be disclosed to the jury on either direct or cross-examination to assist the jury in evaluating the expert's opinion by considering its bases. This is true even if the facts, data or opinions have not themselves been admitted and thus may not be considered for their truth.
66 794 S.W.2d 264 (Mo. App. W.D. 1990).
67 972 S.W.2d at 355, citing State v. Candela, 929 S.W.2d 852, 866 (Mo. App. E.D. 1996). See also Hobbs v. Harken, 969 S.W.2d 318 (Mo. App. W.D. 1998) (under § 490.065, RSMo, the evidence an expert relies on in forming his or her opinion need not be independently admissable. Such an opinion may be based on "hearsay and still be admissable if the expert testifies that the information on which he or she relied is of the type reasonably relied on by experts in the field".)
68 509 U.S. 579 (1993).
69 293 F.1013, 1014 (D.C. Cir. 1923).
70 Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 296 (8th Cir. 1996).
71 140 F.3d 1161 (8th Cir. 1998).
72 97 F.3d 293 (8th Cir. 1996).
73 Id. at 296, citing Westcott v. Crinklaw, 68 F.3d 1073, 1075 (8th Cir. 1995).
74 Id. at 297, citing Gier v. Educational Serv. Unit No. 16, 66 F.3d 940, 943-44 (8th Cir. 1995) (applying Daubert to psychological evaluations in cases of alleged child abuse), and Pestel v. Vermeer Mfg. Co., 64 F.3d 382, 384 (8th Cir. 1995) (applying Daubert to testimony of mechanical engineer).
75 Id. at 297, citing Daubert, 509 U.S. at 593.
76 See also Gier v. Educational Service Unit No. 16, 66 F.3d 940 (8th Cir. 1995) (appellate court upheld trial court's exclusion of expert testimony for failure to meet reliable methodology criteria of Daubert), and Wright v. Willamette Indus., Inc., 91 F.3d 1105 (8th Cir. 1996) (appellate court reversed trial court's admission of expert testimony, finding it was not based on reliable scientific knowledge as required by Daubert).
77 148 F.3d 905 (8th Cir. 1998).
78 Id. at 907, citing General Electric Co. v. Joiner, 118 S.Ct. 512, 519 (1997).
79 Id. at 907.
In the first place the questions called for opinions of the witnesses on one of the ultimate questions in the case; they invaded the province of the jury on a question which the jury was entirely capable of answering without the benefit of their expert opinion, were we to assume that these witnesses had qualified as experts on the adequacy of labeling. . . . Further . . . these two witnesses were [not] qualified to express an opinion as to the adequacy of warnings and directions. . . . Whether or not a given warning is adequate depends upon the language used and the impression that it is calculated to make upon the mind of an average user of the product. Questions of display, syntax, and emphasis are involved in evaluating a warning, or set of directions, and upon those matters plant pathologists and entomologists are not necessarily qualified to speak.
80 Id. at 907, citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, (1993).
81 Id. citing Wright v. Willamette Indus., 91 F.3d 1105, 1108 (8th Cir. 1996).
82 Id., citing Walton v. Sherwin-Williams Co., 191 F.2d 277, 285 (8th Cir. 1951).
83 154 F.3d 875 (8th Cir. 1998)
84 Id. at 882-883, citing Daubert, United States v. Call, 129 F.3d 1402, 1406 (10th Cir. 1997), and Pelster v. Ray, 987 F.2d 514, 526 (8th Cir. 1993).
85 Id. at 883.
86 Id., citing United States v. Kime, 99 F.3d 870, 884 (8th Cir. 1996), United States v. Whitted, 11 F.3d 782, 785-6 (8th Cir. 1993), and United Statse v. Azure, 801 F.2d 336, 340 (8th Cir. 1986).
87 Id. at 883, citing United States v. Rouse, 111 F.3d 561, 571 (8th Cir. 1997), United States v. Whitted, supra, and Westcott v. Crinklaw, 68 F.3d 1073, 1076 (8th Cir. 1995).
88 293 F. 1013 (D.C. Cir. 1923).
89 In State v. Love, 963 S.W.2d 236 (Mo. App. W.D. 1997), the court noted that the Supreme Court of Missouri first applied Frye in a criminal case in State v. Stout, 478 S.W.2d 368 (Mo. 1972).
90 974 S.W.2d 519, (Mo. App. W.D. 1998).
91 Id. at 528, citing Schumann v. Mo. Hwy. & Transp. Comm'n, 912 S.W.2d 548, 554 (Mo. App. W.D. 1995), Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 860 (Mo. banc 1993), and Lasky v. Union Electric Co., 936 S.W.2d 797 (Mo. banc 1997); Missouri followed the Frye standard in Bray v. Bi-State Dev. Corp., 949 S.W.2d 93, 98 (Mo. App. E.D. 1997).
92 Id. at 528.
93 Id. at 528, citing Conopo, Inc. v. May Dept. Stores Co., 46 F.3d 1556, 1572 (8th Cir. 1994); Barnes Group, Inc. v. Connell Ltd. Partnership, 793 F. Supp. 1277, 1292 (D. Del. 1992); Silver v. U.S. Postal Serv., 951 F.2d 1033, 1042 (9th Cir. 1991).
94 Id. at 528.
95 Id. at 529, citing Kahn v. State Oil Co., 93 F.3d 1358, 1365 (7th Cir. 1996).
96 Id. at 529, citing Rust v. Hammons, 929 S.W.2d 834, 838 (Mo. App. W.D. 1996), and State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988).
97 Stan Cushing Constr. v. Cablephone, Inc., 816 S.W.2d 293 (Mo. App. S.D. 1991). See also Spain v. Brown, 811 S.W.2d 417 (Mo. App. E.D. 1991).
98 759 S.W.2d 87 (Mo. App. W.D. 1988).
99 Rust v. Hammons, 929 S.W.2d 834 (Mo. App. W.D. 1996).
100 Riley v. Union Pacific R.R., 904 S.W.2d 437 (Mo. App. W.D. 1995).
101 Rhodus v. Wheeler, 927 S.W.2d 433 (Mo. App. W.D. 1996).
102 969 S.W.2d 318 (Mo. App. W.D. 1998).
103 Id. at 323, citing Lytle v. T-Mac, Inc., 931 S.W. 2d 496, 500 (Mo. App. W.D. 1996), Lazane v. Bean, 782 S.W. 2d 804, 806 (Mo. App. W.D. 1990), and Rust v. Hammons, 929 S.W. 2d 834, 839 (Mo. App. W.D. 1996).
104 Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852, 869 (Mo. banc 1993).
105 See Houfburg v. Kansas City Stockyards, Maine, 283 S.W.2d 539, 548 (Mo. 1955).
106 Embree v. Norfolk & Western Ry. Co., 907 S.W.2d 319 (Mo. App. E.D. 1995). See also Wilson v. ANR Freight Systems, Inc., 892 S.W.2d 658, 664 (Mo. App. W.D. 1994), and Grippe v. Momtazee, 705 S.W.2d 551, 556 (Mo. App. E.D. 1986) (to be established as authoritative, there must be evidence that the scientific text is generally accepted and accredited in the profession. Articles in medical journals are not admissible as independent, substantive evidence. Rather, they are used to test the knowledge of the expert and the reliability of the expert's opinion).
107 Crain v. Newt Wakeman, M.D., Inc., 800 S.W.2d 105 (Mo. App. S.D. 1991).
108 Newell Puerto Rico, Ltd. v. Rubbermaid, Inc., 20 F.3d 15, 20 (1st Cir. 1994).
109 Id. at 21.
110 See, e.g., Eagleburger v. Emerson Elec. Co., 794 S.W.2d 210 (Mo. App. S.D. 1990) (use of other party's expert permitted by trial court where specific disclosure made before trial, expert's deposition had been taken, and no prejudice shown).
111 Turner v. Fuqua Homes, Inc., 742 S.W.2d 603, 610 (Mo. App. W.D. 1987).
112 Wilkerson v. Prelutsky, 943 S.W.2d 643 (Mo. banc 1997).
113 Hruban v. Hickman Mills Clinic, 891 S.W.2d 188 (Mo. App. W.D. 1995). See also Owen v. City of Springfield, 741 S.W.2d 16, 20 (Mo. banc 1987), and State ex rel. Stufflebam v. Appelquist, 694 S.W.2d 882 (Mo. App. S.D. 1985).
114 Blake v. Irwin, 913 S.W.2d 923 (Mo. App. W.D. 1996).
115 Gassen v. Woy, 785 S.W.2d 601 (Mo. App. W.D. 1990).
116 879 S.W.2d 639 (Mo. App. W.D. 1994).
117 See State ex rel. Creighton v. Jackson, 879 S.W.2d 639 (Mo. App. W.D. 1994), State ex rel. Lichtor v. Clark, 845 S.W.2d 55 (Mo. App. W.D. 1992), and Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980).
Mr. McCarter is a principal in the St. Louis firm of Behr, Mantovani, McCarter & Potter, P.C. He received his J.D. in 1975 from the University of Missouri-Columbia. He served as president of The Missouri Bar in 1993-94.
1998, W. Dudley McCarter