‘That’s (Not) a Fact, Jack.’[1]

On May 11 the Tennessee Supreme Court will hear oral argument on a case that has profound implications for all tort lawyers and their clients. The court’s resolution of this case will explore the difference between “facts,” “data” and “opinions,” and will determine whether an expert witness should be permitted to testify about the expert’s conversations with another expert who was not called as a witness.

In Holder v. Westgate Resorts Ltd.,[2] a defendant in a premises liability case called an expert to testify, inter alia, on the interpretation of a section of the applicable building code. Defendant’s expert sought to bolster his view on the application of the code section by indicating that he had called the International Code Council in Birmingham and sought their advice. The trial court sustained an objection to the testimony, and an offer of proof included the following:

[The expert] would have testified that after making that contact, the manner by which he evaluated this landing area and the manner by which he measured this landing area, he received instruction on how to do that from this resource, and the way he did it conformed to the instruction received from the ICC, which drafted the code and content.[3]

Defendant lost the trial and raised the exclusion of the testimony on appeal. A majority of the Eastern Section of the Court of Appeals said the trial judge erred in excluding the testimony. The majority conceded the proposed testimony was hearsay,[4] but ruled that the testimony was admissible under Rule 703 of the Tennessee Rules of Evidence.[5] The majority stated that Rule 703 contemplates that inherently reliable information is admissible to show the basis for an expert’s opinion, even if the information would otherwise constitute inadmissible hearsay. It is not uncommon for an expert witness’s opinion to be based on facts or data that are not admissible into evidence but are reliable.[6]

The majority then concluded that the proposed testimony would have elicited “facts or data” and thus was admissible.[7]

Judge Charles D. Susano agreed with the majority opinion in all respects except as to the admissibility of the excluded testimony. He explained:

[Defendant’s expert] wanted to go further and buttress his opinion by telling the jury what someone else’s opinion was — obviously one who had an opinion identical to his. In other words, Horner wanted to tell the jury, in so many words, “I’m an expert and I have talked to John Doe, who is a super expert, and we both agree as to how this should be done and here is how it should be done.” It goes without saying that the “super expert” would not have been available at trial for cross-examination.[8]

Judge Susano maintained that the proposed testimony sought to offer an opinion as to the proper methodology for applying a code provision to the facts and thus could not be admissible “facts or data.”[9]

Experienced tort lawyers can readily see how the majority opinion creates an opportunity for hearsay opinions of others to get before the jury. As Judge Susano explained in his dissent,[10] while it is sometimes difficult to sort out what is fact and what is opinion, the proposed testimony in this case went to the heart of the disagreement between experts who had reached different conclusions on how to interpret (or at least apply) the language. If the application of a code provision is fairly subject to question under the circumstances, any answer to that question is an opinion. If there are differences of opinion expressed by experts, those experts should be available for cross-examination.

Even if the excluded testimony could be considered “facts or data,” the Advisory Commission comments to the Rule 703 indicate that “normally the jury should not be allowed to hear the reliable but inadmissible bases underlying an expert’s opinion.” The majority opinion did not reference this comment, much less explain it away. Indeed, the majority failed to apply the applicable standard, finding that the “probative value of the testimony to the fact finder outweighs the prejudice to plaintiff.”[11] The test provided by Rule 703 requires that the probative value of the otherwise inadmissible evidence “substantially outweigh[]” the prejudicial effect.

The majority noted that plaintiff’s counsel could have cross-examined the witness about the conversation with the ICC official. True, but if this is a factor for determining whether hearsay should be admitted into evidence, then all oral hearsay should be admissible.

The majority also concluded that the plaintiff could have called his own expert back to the stand to testify on the validity of the hearsay testimony. That is possible, unless one considers that

(a) plaintiff’s experts tend to testify before defense experts and rarely hang around the courthouse for rebuttal testimony and
(b) the expert still would be offering commentary of the unsworn statements of an unknown person in Birmingham.

The majority opinion in Holder has grave implications for the trial of cases involving experts. It has the potential for injustice to plaintiffs and defendants. Fortunately, the Tennessee Supreme Court accepted review of the case. In the view of this writer, the court should send a clear message that the proffered testimony in this case was properly excluded and that otherwise inadmissible facts, data and opinions should not normally find their way to the fact finder merely because an expert witness wants to testify about them.

Notes

  1. This is an altered version of John Winger’s statement to General Barnicke in the movie, Stripes. Winger (played by Bill Murray) and his men trained all night for graduation exercises and then overslept. They showed up late at the parade grounds wearing fatigues and looking disheveled. Barnicke (Robert K. Wilke) asked Winger, “Are you telling me that you men finished your training on your own?” Winger irreverently yelled, “That’s the fact, Jack.” The words were echoed by his fellow soldiers.
  2. No. E2009-013120COA-R3-CV (Tenn. Ct. App. July 30, 2010).
  3. Id. at p. 5. The opinion does not indicate whether this testimony was set forth in the expert witness disclosure of the witness. Obviously, if the conversation with the ICC was a basis for the expert’s opinion, the expert witness disclosure should have so indicated. The failure to make such a disclosure should have resulted in an exclusion of the testimony under Rule 37.03 of the Tennessee Rules of Civil Procedure.
  4. Id. majority opinion at p. 6.
  5. The rule provides as follows: “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. 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 court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.
  6. Neil P. Cohen et al., Tennessee Law of Evidence § 7.03(4); see also Duran v. Hyundai Motor America Inc., 271 S.W.3d 178, 197 (Tenn. Ct. App. 2008) (experts may base their opinions on information provided to them by others pursuant to Tenn. R. Evid. 703). No. E2009-013120COA-R3-CV, majority opinion at p. 7 (Tenn. Ct. App. July 30, 2010).
  7. Id. at p. 8- 9. The Court did conclude, however, that the exclusion of the testimony was harmless error and affirmed the verdict. Id. at 9.
  8. Id., dissenting opinion at p. 2.
  9. Id.
  10. Id.
  11. Id. majority opinion at p. 9.

John A. Day JOHN DAY is a trial lawyer in Brentwood, Tenn. He readily, but humbly, offers facts (not opinions) on virtually any subject, including the law of torts.