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Courts decide 6 expert witness cases

Expert witnesses play an increasingly prominent role in litigation.  They are called upon for a variety of purposes, ranging from establishing a standard of care for liability purposes to assessing damages, and a whole lot in-between.

Their function, in the words of Rule 702 of the Federal and state Rules of Evidence, is to “assist” a jury or, in bench trials, a judge in making factual determinations.

The state and federal courts in Minnesota recently passed upon six cases involving a variety of issues relating to use of expert witnesses in litigation.  The sextet of cases reflects the broad swath of utilization of expert witnesses in litigation.

Two topics

Two topics of expert witness testimony were properly admissible in a first-degree murder prosecution in State v. Xiong, 829 N.W.2d 391 (Minn. 2013).  The defendant was convicted by a Washington County District Court jury of shooting and killing the owner of a vehicle that he met in response to a sales ad on Craigslist.  At trial, a medical examiner testified for the state that the “manner” of death was “homicide,” while a forensic firearms expert testified that the weapon could only be discharged by pulling or pressing the trigger, refuting the defendant’s claim that it was an accidental shooting.

The defendant challenged both experts on appeal. Because he did not object to either at trial, he had to satisfy the “plain error” standard, which he failed to do, resulting in affirmance.

The testimony of the medical examiner was properly admissible because it was useful for the jury and it did not “improperly opine on the defendant’s intent.”  Explaining that the autopsy results were “consistent with homicide,” the expert testimony “assisted the jury’s understanding of the medical evidence.”

Testimony of the firearms expert also was properly admitted because it constituted his “professional opinion  … to address [defendant’s] misfire theory.”  By testifying that the gun was “mechanically sound and could not be discharged accidentally,” [the] … testimony did not constitute an expert witness as to [defendant’s] intent.”

Driving decisions

The refusal by the trial judge to allow a defendant in a Driving Under the Influence case to present expert testimony regarding the alcohol testing process was upheld in Bengtson v. Commissioner of Public Safety, 2013 WL 1859059 (Minn. App. May 6, 2013)(unpublished).  The defendant’s driver’s license was revoked after a urine sample in excess of the 0.08 threshold level.  The driver appealed the determination by the Ramsey County District Court excluding expert testimony regarding the scientific community’s use of a second urine sample for greater accuracy.

The appellate court affirmed, pointing to the Frye-Mack standard governing admissibility of scientific evidence.  The expert testimony was not admissible because the state Supreme Court has held that the statutory definition of alcohol concentration for DUI in Minn. Stat. sec.  169.A.52, subd. 4, does not necessitate a correlation between a particular method of blood testing.  Under Supreme Court precedent, blood alcohol concentration is “not relevant” when the offense consists of driving with an alcohol concentration of more than the statutory amount.

The defendant’s additional argument that he should have been allowed to present testimony regarding his “abnormally high” glucose level to explain his high level of alcohol concentration also was rejected because he did not raise that issue in the trial court.

Similarly, the exclusion of expert testimony about the effects of a disease on a driver’s high blood test reading in an implied-consent hearing was upheld in Murtha v. Commissioner of Public Safety, 2013 WL 3491105 (Minn. App. July 15, 2013) (unpublished).  The Hennepin County District Court allowed a forensic toxicologist to explain the potential effects of a stomach acid affliction, known as gastroesophageal reflux disease, on  a driver whose breathalyzer showed an impossible 0.093 alcohol content, resulting in revocation of his license under the implied-consent law. But the judge excluded certain medical findings about the disease and disallowed the expert to opine on “this particular” test of the driver on foundational grounds.

The appellate court affirmed, holding that the exclusion of the medical records was proper because it would be hearsay to allow them to be used as a diagnosis of the disease.

Barring the toxicologist to opine on the effect of the disease on this specific test also was appropriate.  The testimony of the driver that he was experiencing symptoms of the illness when tested was found to lack credibility and “[w]ithout credible testimony … there is no foundation for an expert opinion” that the disease effected the test.

Appraisal appeal

An appeal focusing upon exclusion of an appraisal by an expert witness and supporting testimony in a dispute over a construction project was upheld in Minnehaha Business Center, LLC v. St. Paul Port Authority, Inc., 2013 WL 1707825 (Minn. App. April 22, 2013)(unpublished).  The case was brought by an owner of commercial property in St. Paul who claimed to have suffered damages because a construction project by the St. Paul Port Authority resulted in temporarily restricting access to the parking lot for the business during the construction and caused permanent reduction in the number of available parking spaces.

The Ramsey County District Court disallowed the expert’s valuation report on grounds that it was untimely and, absent the report, precluded testimony by the expert witness because of lack of foundation.

But the appellate court overturned that determination.  The expert had been timely disclosed with “detailed information on the substance and grounds” for the testimony.  The trial court’s determination that the expert witness disclosures by the property owner contained insufficient information for the Port Authority to prepare for cross examination was wrong.  The owner’s amended expert witness disclosure under Rule 26.02(e)(1)(A) of Minnesota Rules of Civil Procedure, was satisfied because the owner identified that the expert witness’ testimony would include  the fair market value of the property before the construction and its diminished fair market value afterwards, along with explaining the three methods used by the expert in calculating damages, “income approach,” “sales comparison basis,” and “cost analysis.”  The expert disclosure also properly “summarized” the expert’s calculations of damages.”

Thus, it was an abuse of discretion for the trial court to preclude the appraisal report of the witness testimony.  The case was remanded for consideration of the property owner’s claim of breach of contract and with admission of the expert’s appraisal and his testimony regarding the damages.

Fee fight

Both sides engaged in a fight over taxation of fees of an expert witness in a lawsuit by 17 community action agencies against a self-insured pool providing group insurance coverage to various companies and political subdivisions after membership of the agencies in the insurance pool was terminated in ACCAP-HUD Homes Tax Credit Limited Partnership v. Minnesota Counties Intergovernmental Trust, 2013 WL 1395617 (Minn. App. April 8, 2013)(unpublished).  The insurance pool prevailed on summary judgment before the Ramsey County District Court, and the appellate court affirmed.  2012 WL 5834569 (Minn. App. Nov. 19, 2012) rev. den’d. (Minn. Jan. 29, 2013).  The prevailing defendant was then awarded $15,000 as expert witness fees, without an evidentiary hearing, in response to a request for taxation of nearly $70,000 for such fees.

Both sides objected, the losing claimant asserting that the amount was too high and the prevailing defendant maintaining it was too low.  The appellate court rejected both claims and affirmed the lower court taxation.

It was proper for a trial court to include pretrial preparation work in the expert witness fee since it is “well established” that the trial court has discretion to award expert witness fees to the prevailing party for “pretrial preparation time,”  even though the case was decided on summary judgment without trial.  The amount of the expert witness fees also was proper based upon the time performed by the expert witness and the applicable hourly rate.

But reducing the fee award by more than 75 percent of the amount sought, was appropriate because “only a portion of the claimed expert witness fees is reasonable,” and the trial court specifically explained how it reached that conclusion for “not awarding the full amount of expert-witness fees requested.”

Federal fracas

A fracas over expert witnesses in a Federal Court diversity case over a motion vehicle accident was resolved by the 8th Circuit Court of Appeals in Bradshaw v. FFE Transportation Services, Inc., 715 F.3d 1104 (8th Cir. June 3,2013). The issues concerned evidence from two medical witnesses whose testimony led to a $1 million verdict for the claimant in a retrial following an identical $1 million verdict in the first trial, which was set aside by the trial judge. The judge also allowed use of anatomical drawings by one of those experts while excluding two experts belatedly proffered by the defendant.

The 8th Circuit affirmed. A pair of plaintiffs’ experts were properly declined in discovery before the first trial and the defendant “waived any objections” by failing to raise them before the discovery cutoff. The anatomical drawings used by one of them was properly allowed with the discretion of the trial judge and also was not timely objected to at trial.

Exclusion of two defense witnesses “was not an abuse of discretion” because they were not timely identified in the first trial. Rescheduling of the trial did not extend the discovery time periods, “nor constitute a justifiable to reopen discovery period.”

Expert witnesses offer testimony about a wide variety of issues.  As these cases reflect, the legal issues that are raised by their testimony are often varied, too.

Perspective Pointers: Expert witness state evidentiary rules

  • Rule 701: Testimony must be “rationally based” and “helpful”
  • Rule 702: Qualifications by knowledge, skill, experience, training, or education
  • Rule 703: Underlying data must be “independently admissible” or “trustworthy”
  • Rule 704: Testimony may embrace “ultimate issue”
  • Rule 705: Expert may be required to disclose “underlying facts or data”
  • Rule 706: Court may appoint experts sua sponte


Originally published by MinnLawyer.