EXPERT TESTIMONY


From: Steven Pavsner <smpavsner@aol.com>


Magistrate Judge Grimm has ruled that, in (Md) diversity cases in Fed Ct., plaintiffs’ experts’ opinions may not be ad- missible unless expressed with reasonable certainty/probability in their area of ex- pertise, but no such requirement applies to defendants’ experts. He denied a mo- tion to strike defendant’s expert’s testimony, even though not a single ques- tion was asked, and not a single answer offered, whether the opinions were held with reasonable certainty/probability. I had always thought the issue was one of admissibility. I’ve pretty thoroughly re- searched the case law, and see numerous 4th circuit and other cases in which a plaintiff ’s expert’s testimony was stricken or not admitted when not so expressed, but I haven’t found any cases in which a defendant’s expert testimony suffered the same fate. Does anyone know of any such cases, or have a view as to whether the requirement applies equally to Ps and Ds— and if not, why not?


From: George S. Tolley, III: gtolley@lawdjb.com


It has been my understanding that ex- pert opinions, with a few exceptions, must be expressed to a “reasonable degree of prob- ability.” Further, although those exact words need not be quoted by the expert, if the opinion is not expressed to the necessary standard, then the opinion may be ex- cluded. The Court of Special Appeals addressed the question in Karl v. Davis: There is no appellate court opinion in Maryland that has held that the man- tra “within a reasonable degree of medical probability” is absolutely re- quired before each and every medical expert opinion. It is understood, how- ever, that “[t]hese wooden phrases are required to make sure that the expert’s opinion is more than speculation or conjecture.” J. Murphy, Maryland Evi- dence Handbook, §§ 1404 (2ded. 1993). Furthermore, appellate courts have made clear that expert testimony based upon anything less than a rea- sonable degree of probability may be properly excluded.


Johns-Manville, 296 Md. at 666, 464 A. 2d 1020;


Hines v. State, 58 Md. App. 637, 670, 473 A. 2d1335 (1984). Karl, 100 Md. App. 42, 52-53, 639 A. 2d 214, 219 (1994). Applying this rule, although an expert need not recite the “wooden” phrase in his or her testimony, it must be clear to the court (in the con- text of the testimony, I suppose) that the expert is expressing an opinion to the nec- essary standard or the opinion is excludable. In certain situations, however, such as proving causation in a personal injury case, expert opinions need NOT be expressed to a reasonable degree of probability. Karl v. Davis holds that, as well as the recent CSA case of Jacobs v. Flynn, with both cases citing Charlton Bros. Transp. Co., Inc. v. Garrettson, 188 Md. 85, 51 A.2d 642 (1947).Under cer- tain circumstances, therefore, a judge would not have to strike expert testimony, even if it were not expressed to a reason- able degree of probability.


Of course,


there should be no distinction as between experts testifying for plaintiffs or defen- dants. Experts on both sides must be judged by the same standards. But the standards can change depending upon the topic of the testimony.


Marilyn Cimonetti, RN, BA Legal Nurse Consultant


Areas of Expertise: ♦ Medical Malpractice ♦ Personal Injury ♦ Traumatic Brain Injury ♦ Catastrophic Injury ♦ Managed Care ♦ Nursing Home/Home Health ♦ Psychiatric/Chemical Dependency


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Fall 2000 Trial Reporter 31


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