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Edward J. Imwinkelried

This is the third and final article in a series devoted to the role that Federal Rule of Evidence 703 plays in determining the admissibility of expert testimony. Again, that statute reads: “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived 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 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 first two articles in this series [NLJ, 10-13-03 and 12-15-03] dealt with three interpretive issues under Rule 703. This article concludes the series by addressing two other issues, one triggered by the second sentence and a final question that accounts for the 2000 amendment that added the third sentence to Rule 703. One word, ‘reasonably,’ touches off a controversy The adverb “reasonably” in the second sentence has given rise to a controversy. Suppose that the expert testifies that it is not only his or her practice to consider a certain type of information such as bystanders’ reports, but that it is also a widespread practice within his or her specialty. The trial judge finds that testimony credible. Yet, in an objective sense, the judge has grave misgivings about resting fact findings on that type of data. Given the judge’s finding, is the judge obliged to allow the expert to consider that type of information? In short, does “reasonably” equate with “customarily”? If it does, the judge’s hands are tied; and despite his misgivings, he must permit the expert to factor this type of information into the analysis. In fact, this issue has divided courts into three schools of thought. The liberal school interprets “reasonably” as meaning “regularly” or “customarily.” The proponents of this school find some support in the Advisory Committee Note to Rule 703. The note states that one of the purposes of Rule 703 is “to bring judicial practice into line with the practice of experts themselves when not in court.” The competing restrictive school advocates that “reasonably” denotes objective reliability rather than customary practice. These courts acknowledge that the specialty’s customary practice is entitled to “due regard,” but they deny that the factor is dispositive. This school is certainly defensible as a matter of statutory construction. In rules 406 and 803(17), the drafters found apt, express language when they wanted an outcome to turn on a “habit,” “routine practice” or “general . . . reli[ance].” The drafters did not incorporate such language into Rule 703. Rather, they chose the adverb, “reasonably.” In the related tort context, when the question is whether a defendant manufacturer’s practice was negligent, it is relevant but not dispositive that the practice in question was customary in the industry. D. Dobbs, The Law of Torts 164 (2000); W. Page Keeton el al., Prosser and Keeton on The Law of Torts � 33, at 193 (5th ed. 1984). In a tort case, a judge has a residual power to second-guess the industry practice and declare it negligent. Likewise, the argument runs, in an evidence case the judge should have a residual power to second-guess the expert specialty’s practice and hold that reliance on that type of information is objectively unreasonable. The third view, a compromise school, regards the specialty’s customary practice as such “strong evidence” of reasonableness that proof of the custom gives rise to a formal presumption of reasonableness. Ryan v. KDI Sylvan Pools Inc., 121 N.J. 276, 579 A.2d 1241, 1247 (1990). However, in an extreme case, as under the restrictive view, the judge still retains the power to reject the experts’ practice. Most courts have opted for either the restrictive or the compromise view. At one time, the leading precedent for the liberal view was In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 275-79 (3d Cir. 1983), cert. granted in part sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 471 U.S. 1002 (1985). However, in a persuasive opinion authored by Judge Edward R. Becker, the same court, the 3d U.S. Circuit Court of Appeals, later did an about-face and overruled that decision. In re Paoli RR Yard PCB Litig., 35 F.3d 717, 732-33 (3d Cir. 1994), cert. denied, 513 U.S. 1190 (1995). As a result, the restrictive school now represents the overwhelming majority view. The third sentence of Rule 703 is a recent addition. The amendment took effect in December 2000. In addition, it is a product of a controversy. Assume that an expert proposes relying on hearsay that is not independently admissible. Yet the trial judge decides that it is objectively reasonable for the expert to base his or her opinion on that type of information. On this set of assumptions, may the expert describe the information in detail during his or her direct testimony? And if the hearsay were in written form, could the expert’s proponent introduce the writing into evidence and submit it to the jury? Like the prior question, this issue prompted a three-way split of authority among the courts and commentators. At one extreme, Professor Paul Rice argued that, in principle, the expert had to be permitted to elaborate on the information and that the information must be received as substantive evidence. Rice, “Inadmissible Evidence as a Basis for Expert Opinion Testimony: A Response to Professor Carlson,” 40 Vand. L. Rev. 583 (1987). Analogizing to Rule 803(4)’s hearsay exception for statements to physicians, Rice argued that experts can be trusted to separate the wheat from the chaff. He reasoned that if the validity of the opinion depended on the truth of the underlying premises, it made no sense to admit the information “for a limited purpose.” If those facts were untrue, the opinion was invalid; and the court had no business admitting either the opinion itself or any testimony about the bases. At the other extreme, Professor Ronald Carlson began with the premise that the information should not be accepted as substantive evidence. He contended that in criminal cases, in particular, the substantive treatment of such information violates the confrontation clause. Carlson, “Collision Course in Expert Testimony: Limitations on Affirmative Introduction of Underlying Data,” 36 U. Fla. L. Rev. 234 (1982). On that premise, he argued that it was unsound to admit detailed testimony about the information even with a limiting instruction. Carlson believed that there was an intolerable risk that the jurors would misuse the testimony as substantive proof; the jurors would prove unable or unwilling to perform the mental gymnastics required by the limiting instruction. The compromise position was championed by Professor JoAnne Epps. She staked out the position that, interpreted in light of Rule 705, Rule 703 authorizes detailed testimony about the opinion’s bases but that in extreme cases, under Rule 403, the judge could bar such testimony. She presented a persuasive statutory construction argument for her position: “Rule 705 . . . permits the expert to offer her opinion without prior disclosure of the underlying facts or data, unless the court requires otherwise. If the facts or data underlying the expert’s opinion were not to be routinely disclosed, there would be no need for a rule of sequence that placed the opinion before the disclosure of the facts. Moreover, if the only facts or data that could be considered as the basis of the expert’s opinion were those that were already admitted in evidence, there would be no need for the rule to say that the expert need not disclose them. Thus, Rule 705 would have been nonsensical unless it contemplates the routine disclosure of otherwise inadmissible facts or data underlying the expert’s opinion.” Epps, “Clarifying the Meaning of Federal Rule of Evidence 703,” 36 B.C. L. Rev. 53, 71 (1994). Rice’s view had an appealing logic and Epps seemed to have the better of the statutory-interpretation debate, but Carlson’s policy view carried the day with many drafters. Both Kentucky and Minnesota amended their versions of Rule 703 to wholly or partially adopt Carlson’s view. More importantly, though, his position gained the favor of the reconstituted Advisory Committee on the Federal Rules of Evidence. Citing his writing on the subject, the committee proposed the addition of the third sentence to Rule 703. That amendment ultimately took effect on Dec. 1, 2000. Evidence codes patterned after the federal rules The amendment, though, does not end the controversy. Four-fifths of the states now have evidence codes patterned after the federal rules, and the vast majority of those have provisions worded almost identically to Rule 703-to be more exact, the version of Rule 703 that was in effect before the 2000 amendment. In short, the issue is still a lively one in all the states that have statutes or court rules modeled after the prior version of Rule 703. The lengthy brouhaha over Rule 702 and Daubert creates a pitfall for the proponent of the expert testimony. That controversy has been so highly publicized that it is easy for the proponent to lose sight of the fact that Rule 702 is only one of the hurdles to the admissibility of an expert opinion. The proponent must also satisfy Rule 703. And, we have seen in this series of articles, there are so many sharp splits of authority over the correct interpretation of that rule that the proponent can be blindsided by a Rule 703 objection. Rule 702 may seem to be the giant gorilla, but 703 is the snake lurking in the grass. Edward J. Imwinkelried is a professor at the University of California, Davis School of Law and the co-author of Scientific Evidence (3d. Ed. 1999).

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