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VOLUME 9 July 2005 | ||||||
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RULE 705: FEDERAL-STATE DIVIDE IN DISCLOSURE REQUIREMENTS FOR EXPERT TESTIMONY By Stephen Ledva, Jr., Esq. and M. Brooke Waldman
Under Pennsylvania Rule of Evidence 705, expert witnesses must testify to the facts upon which their opinions are based. In the recent Fen Phen case, Hansen v. Wyeth, the court relied on this rule to reject testimony of an otherwise highly qualified expert witness when the expert proved unable to provide the factual and scientific bases for his conclusions.
The court cited several problems with the expert’s testimony. The court found the expert’s sources inadequate when it became clear during cross-examination that he had received only limited and prescreened information from the attorneys and had not received information he specifically requested. In addition to being unsupported, the court also criticized the expert’s opinions as being illogical or inapplicable. While the expert claimed to have carefully reviewed depositions and other relevant documents, he was unable to cite to any specific facts he had relied upon during the course of his testimony. In one instance, he concluded that Wyeth’s surveillance department was inadequately staffed and underqualified but was unable to testify as to any specific individual’s position or qualifications. Instead, his opinion appeared to be based on the fact that the department had missed “signals” that they should have noticed about the drug, the very question at issue in the trial. His medical conclusions were also proven, on cross-examination, to be unsupported by records or medical literature, either in their entirety or for the time period in question. As a result of these findings, the judge ordered a new trial on the issue of liability.
Pennsylvania’s Rule of Evidence 705 operates by requiring the attorney to elicit the factual basis for the expert’s opinion during direct examination. Although not codified until 1998, the current rule is a formulation of a long-standing common law concept in Pennsylvania. As the Hansen court noted, the rule’s purpose is to preserve the fact-finding function of the jury. If an expert gives an opinion based on material facts, which may differ from the jury’s own interpretation, the basis for such opinion must be provided so that the jury may consider how much weight to assign the testimony.
This differs from the Federal Rule of Evidence 705, which allows the expert witness to state their opinion without first providing the supporting facts or data. While some factual background normally comes out on direct, the federal rule relies instead on opposing counsel to expose any weaknesses. Comment to Pa.R.E. 705. Prior to the enactment of Rule 705, the Pennsylvania Supreme Court directly considered this issue and declined to adopt the federal version. Kozak v. Struth. The court reasoned that requiring the proponent to establish the factual background for the expert’s opinion prevented the general conclusion from being “planted” in a way that may be difficult or impossible to undo in complex cases.
The Hansen court summarized the few appellate decisions in existence on this issue to find three preliminary requirements for any admission of expert testimony: (i) factual basis must given during direct examination; (ii) facts relied upon must be “of record” and; (iii) the opinion cannot “bootstrap” factual material into the case. The second element requires that experts limit their assumptions to such facts as a reasonable jury would be warranted in finding; thus, experts may not be asked in hypothetical form to assume facts not in evidence. Viener v. Jacobs; Houston v. Canon Bowl, Inc. The court’s final requirement is that the facts offered by the proponent must logically support the expert’s conclusions.
The Hansen court found the role of the court under Rule 705 to be that of a gatekeeper. Consistent with this, the court evaluated both the bases and logic of the expert’s opinions and, ultimately, disallowed the testimony. In Pennsylvania state court, an expert must be able to provide a logical factual background for their opinion, within the boundaries of the rules of evidence. Contrary to the federal version, Pennsylvania’s rule is clear: the burden to provide the solid basis for expert testimony rests squarely with the proponent. |
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