§26.2A Admissibility of Testimony - Consultation with Other Experts
The Case: Holder v. Westgate Resorts Ltd., 356 S.W.3d 373 (Tenn. 2011).
The Basic Facts: In a premises liability trial, defendant’s expert was asked to testify regarding his method of measuring a corridor to determine its compliance with codes. The trial court excluded as hearsay testimony from the expert that the expert telephoned the International Codes Council, spoke with an unnamed person at the Council, and confirmed that the expert’s methodology was correct. The offer of proof showed that the expert would have testified that he and other experts in his field consult officials at the International Codes Council and rely on their instructions as an authoritative resource for proper code interpretation. The Supreme Court affirmed the trial court’s exclusion of the testimony.
The Bottom Line:
“Westgate asserts on appeal that the hearsay testimony is admissible because Mr. Horner is an expert witness testifying as to the basis of his opinion.” 356 S.W.3d at 378.
“Rule 703 provides that an expert opinion may be based on inadmissible evidence. An expert opinion based on inadmissible evidence is permitted if the facts or data on which the opinion is based are trustworthy and ‘of a type reasonably relied upon by experts’ in the field. Tenn. R. Evid. 703; see State v. Lewis, 235 S.W.3d 136, 151 (Tenn. 2007) (permitting an expert to testify to an opinion based on inadmissible hearsay evidence). However, the basis of an opinion, if not otherwise admissible, may be admitted only for the limited purpose of assisting the jury in understanding the opinion. Admission of otherwise inadmissible foundation evidence to assist the jury in understanding the opinion should be rare and should be accompanied by a limiting instruction. See State v. Jordan, 325 S.W.3d 1, 54 (Tenn. 2010) (‘Where an expert witness is referring to hearsay statements not otherwise admissible ... the trial court should instruct the jury that the hearsay statements are to be used only for evaluating the expert witness’s testimony and should not be relied on as substantive evidence.’). According to the rule in effect at the time of the trial, any admission of the basis of an opinion for the purpose of assisting the jury in understanding the opinion was subject to the provisions of Tennessee Rule of Evidence 403. 7 See Tenn. R. Evid. 703 adv. comm. cmt. (‘Unfairly prejudicial facts or data should be dealt with under Rule 403.’).” Id. at 379.
“The trial court determined that the evidence was offered for the truth of the information provided to Mr. Horner and was therefore hearsay. As such, its admission was not to assist the jury in understanding Mr. Horner’s opinion but to insert the opinion of another expert.” Id.
“Experts routinely consult other experts when forming their opinions. Rule 703, however, does not permit a testifying expert to act as the ‘mouthpiece’ of a non-testifying expert by simply parroting the non- testifying expert’s opinion. See Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F.Supp.2d 794, 808 (N.D.Ill.2005) (observing that Federal Rule of Evidence 703 does not permit ‘a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witnesses on whose statements or opinions the expert purports to base his opinion’); see also Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 409 (6th Cir. 2006) (construing Federal Rule of Evidence 703) (‘Other circuits have squarely rejected any argument that Rule 703 extends so far as to allow an expert to testify about the conclusions of other experts.’). The opinion to which an expert testifies must be his own.” Id. at 380.
[Note: Four months after this trial, Tennessee Rule of Evidence 703 was amended to add a sentence at the end stating: “Facts or data that are otherwise inadmissible shall 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 result of this case, however, should be the same under either version of Rule 703, as the new rule sets a higher bar to admissibility of the basis for expert opinion testimony than Rule 403 sets for evidence generally.]