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The prior article in this series focused on Federal Rule of Evidence 703 [NLJ, Oct. 13]. Rule 703 reads: 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 they are 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 order for the opinion or inference to be admitted. 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 prior article noted that while Rule 702 and Daubert have garnered most of the headlines, compliance with Rule 703 is just as essential for the proponent of expert testimony. The article added that there are numerous controversies over the proper interpretation of Rule 703. That article attempted to clarify one controversy by explaining why the expression, “[t]he facts or data in the particular case,” defining the rule’s scope, should be construed to mean case-specific information rather than more generalized research data. However, even if the courts were to reach a consensus on that point, there are several remaining splits of authority. The remaining articles in this series review the major disputes swirling around Rule 703. ‘Basing’ an opinion on an expert’s identical opinion One dispute arises from the title of Rule 703 and the first sentence of the statute. The rule’s title is “Bases” of expert opinion testimony. The initial sentence refers to the information on “which an expert bases an opinion or inference.” Suppose that after reviewing the research and case-specific data in a tort case, a New York toxicologist was prepared to opine that an exposure to the pesticide manufactured by the defendant caused the plaintiff’s cancer. Before trial, the New York expert consulted a colleague in California or Ireland. The colleague concurred with the New York expert’s judgment. At trial, as part of the foundation for his or her opinion, would the New York expert be allowed to refer to other expert’s corroborative opinion? In a broad sense, the third-party opinions can serve as bases for an expert’s opinion. The testifying expert purports to base his or her opinion on that of the nontestifying expert. The opinion’s bases are the considerations that lead the expert to form and adhere to the opinion. Confirmation by a third-party expert gives the witness all the more reason to adhere to his or her opinion. A number of courts permit such corroborative opinions. Carlson, “Experts as Hearsay Conduits: Confrontation Abuses in Opinion Testimony,” 76 Minn. L. Rev. 859, 865 n. 39 (1992). The tendency to admit such opinions is especially pronounced in cases involving psychiatric and land-valuation experts. These opinions allow the proponent to achieve a valuable multiplier effect: The proponent gets two experts for the price of one. Without going to the trouble or expense of calling the Irish expert as a trial witness, in effect the plaintiff gets two witnesses testifying that the defendant’s pesticide caused the plaintiff’s cancer. However, other courts forbid this practice. In re Imperial Credit Industries Securities Litig., 252 F. Supp. 2d 1005, 1013 (C.D. Calif. 2003). Admittedly, even these courts agree that in forming an opinion, a testifying expert may build on a subsidiary opinion furnished by another, nontestifying expert. The Advisory Committee Note to 703 states that “a physician in his own practice bases his diagnosis on information from numerous sources . . . including . . . opinions from nurses [and] technicians.” For instance, after considering a toxicol- ogical technician’s findings, a forensic pathologist could draw a further inference as to the cause of death. However, in the original hypothetical, the testifying toxicologist is not building upon a subsidiary opinion of the nontestifying expert. Rather, both experts’ opinions speak to the identical question. The testifying expert’s opinion is that the exposure caused the plaintiff’s cancer, and the tenor of the nontestifying toxicologist’s opinion is the same. Many courts refuse to allow the testifying expert to function as a conduit for an identical opinion by a nontestifying expert. In the mind of these courts, the proponent has no genuine need to place the nontestifying expert’s opinion before the jury. The opinion of the testifying expert satisfies the proponent’s legitimate need for evidence to sustain the initial burden of production and make out a submissible case for the jury. Also, even if the proponent offers the reference to the nontestifying expert’s opinion for the limited purpose of serving as a basis for the in-court opinion and the judge instructs to that effect under Rule 105, there is a risk that the jury will disregard the instruction and treat the reference as substantive evidence. In short, admitting the corroborative opinion strains the hearsay rule codified in Rule 802. The split of authority about corroborative opinion is premised on the wording of the first sentence of the statute. Other significant splits of authority arise from the phrasing of the statute’s second sentence. The early part of that sentence alludes to “a type [of fact or data] reasonably relied upon by experts in the particular field.” In deciding whether the information satisfies that standard, may the trial judge consider the believability of the information? The differing opinions filed in Christophersen v. AlliedSignal Corp., 939 F.2d 1106 (5th Cir. 1991), cert. denied, 503 U.S. 912 (1992), illustrate the dispute. Prior to Daubert, Christophersen was perhaps the most talked about expert testimony decision handed down in the Federal Rules era. The plaintiffs in Christophersen were the surviving relatives of a former employee of Marathon Manufacturing Co. The employee had died of cancer. The cancer originated in his colon but then metastasized to his liver. While he worked for Marathon, the employee was exposed to cadmium and nickel fumes. The plaintiffs contended that the exposure was the cause of the employee’s cancer and death. As in Daubert, the plaintiffs had to establish both general and special causation. On the general causation issue, the plaintiffs proffered evidence that exposure to cadmium and nickel fumes can cause small-cell cancer of the colon. On the special causation question, the plaintiffs offered an employee’s affidavit describing the extent of the decedent’s exposure to the fumes. The plaintiff’s expert, Dr. Miller, acknowledged that “the level and duration of the patient’s exposure are important considerations when evaluating the effect of exposure to a toxic substance.” The trial judge refused to allow Miller to opine based on the affidavit. On appeal, the majority of the 5th U.S. Circuit Court of Appeals upheld the judge’s refusal. The majority attacked the reliability of the information set out in the co-employee’s affidavit. The majority ruled that even if the plaintiff’s experts had considered “the [generic] types of information upon which experts reasonably rely when forming opinions on the subject . . . ” the district court “ was [nevertheless] justified in excluding Dr. Miller’s opinion . . . based upon . . . grossly inaccurate dosage or duration data.” Even assuming arguendo that as a general proposition an expert might rely on exposure data furnished by fellow workers, the majority concluded that the specific data contained in the affidavit were vague and “plainly untrustworthy.” A chief judge’s separate opinion builds strong case In his separate opinion, Charles Clark, then the 5th Circuit’s chief judge, protested the majority’s conclusion. He asserted that the plain meaning of the statutory language precluded the trial judge from factoring the credibility of the information into the admissibility calculus. As Clark construed Rule 703, the trial judge’s scope of inquiry is narrowly confined to the type of information on which the expert relies. The chief judge wrote that “[t]he court’s inquiry is not whether experts in the relevant field would reasonably rely on the particular facts or data used by the expert witness.” Although Christophersen is still cited as good law, there is a strong case for Clark’s position. Again, the better view is that Rule 703 relates to the case-specific information that the expert relies on. If Rule 703′s scope is so limited, grave problems exist in allowing the judge to pass on the credibility of the specific information. For example, in Daubert, the case-specific information would include testimony indicating that the mother ingested Bendectin rather than another anti-nausea drug or that her son was born with a particular type of limb defect. This information relates to the historical merits of the case; those issues coincide with the ultimate facts determining liability. In our trial system, the jury traditionally evaluates the credibility of the testimony relevant to the ultimate facts. Since the Sixth and Seventh amendments secure constitutional rights to a jury trial, reading Rule 703 as allowing the trial judge to assess the credibility of the information would pose serious concerns about the rule’s constitutionality. 22 Charles A. Wright & Kenneth W. Graham Jr., Federal Practice and Procedure: Evidence 5220, at 306 (1978). A broad reading of Rule 703 would arguably enable the trial judge to usurp the jurors’ authority. Thus, as in the case of the threshold question of the meaning of “the facts or data in the particular case,” the narrow reading seems preferable. To date, we have considered three significant splits of authority concerning Rule 703. However, even that does not exhaust the extent of the controversies over the statute. In the next article in this series, we shall take up two more disputes concerning the very same rule. Edward J. Imwinkelried is a professor at the University of California, Davis School of Law and co-author of Scientific Evidence (3d Ed. 1999).

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