We think of experts as those who have studied and then put their knowledge to use – they have hands on experience, be it as the treating psychiatrist, the engineer who has built bridges, or the agricultural agent who has worked with farmers foe decades. And when selecting an expert for deposition or trial – as opposed to one for consultation – those are the attributes a good lawyer seeks. The expert the jury will respect because of her accomplishments and impacts on people’s lives and livelihood.
But you can’t always get what you want; and the law makes clear that experts with just ‘book learning’ can and do pass muster. This finds support in the standard for determining whether a person is qualified to give expert testimony, and in two recent decisions, one federal and another from Pennsylvania.
Let’s start with the standard. Both versions of Rule 702 – federal and state – speak of a “witness who is qualified as an expert by knowledge, skill, experience, training, or education…” That threshold is low; the common law test, applied in Pennsylvania, is whether a potential expert witness has any reasonable pretension to specialized knowledge on the subject under investigation. If so, the expert is allowed to testify and qualifications otherwise are a matter of weight. The low threshold is raised only in special categories of cases:
In medical malpractice cases, typically, our courts require a heightened standard for medical expert testimony on the standard of care for a specialized area of practice, if the defendant is a specialist…
Wright v. Residence Inn by Marriott, Inc., 207 A.3d 970, 977, 2019 Pa. Super.
The federal standard is equally forgiving as the “any reasonable pretension” Pennsylvania test:
The threshold for qualification is low for purposes of admissibility; minimal foundation of knowledge, skill, and experience suffices…If witnesses could not testify for the first time as experts, we would have no experts..
In re ConAgra Foods, Inc., 90 F. Supp. 3d 919, 953 (Central District California 2015).
More support for the ‘book learning’ expert comes from two recent decisions, one federal and one in Pennsylvania. Here is how the federal court explained it:
Fed. R. Evid. 702 allows the opinions of witnesses who have the requisite “knowledge, skill, experience, training, or education.” The Court finds that Professor Drizin is qualified to testify as an expert in false confessions. He served as the Legal Director of the Center on Wrongful Convictions at Northwestern University School of Law from 2005 to 2013, and then became Assistant Dean of the Bluhm Legal Clinic at Northwestern. [Filing No. 284-1 at 1.] He also was the Supervising Attorney at Northwestern University School of Law’s Children and Family Justice Center, where he dealt with issues relating to juvenile interrogations and confessions. [Filing No. 284-2 at 1.] In 2008, Professor Drizin founded the country’s first Center on Wrongful Convictions of Youth, which is “exclusively dedicated to rectifying the wrongful convictions of children and adolescents.” [Filing No. 284-2 at 1.] While at Northwestern University School of Law, Professor Drizin has focused on “the circumstances under which police interrogation tactics are likely to produce false confessions.” He has written and published numerous articles on the subject. Additionally, he and his students have collected and analyzed false confessions from around the country.
…Plaintiffs… do not offer Professor Drizin as a police practices expert, but as a false confessions expert… Professor Drizin’s work to identify false confessions, his extensive experience in studying and analyzing false confessions, and his authorship of multiple articles on false confessions – often in collaboration with other experts in the field – make him qualified to testify as an expert on false confessions.
Hurt et al v. Vantlin et al, Case 3:14-cv-00092-JMS-MPB Document 444 (9/26/19, S.D. Ind.).
Pennsylvania has concluded the same – reading, studying and writing papers constitutes expertise. Here is the most recent decision on point:
Dr. Guzzardi was going to testify that field sobriety tests were developed to detect alcohol intoxication and that they had never been validated as indicators of impairment due to drug use. He would have derived this opinion from years of rigorous scholarship. The trial court noted that Dr. Guzzardi had:
- “lectured on DUI and field sobriety testing and about drug recognition experts,”
- “published on field sobriety testing . . . [and had] reviewed the literature on field sobriety testing and drug recognition experts in order to teach on these subjects,”
- “testified approximately ten times in York County about field sobriety testing,”
- “looked over the validation studies for standardized field sobriety tests,” and
- “written about the reliability and the neurological issues involved with those tests.”
Commonwealth v. Taylor, 209 A.3d 444, 449-450, 2019 Pa. Super.. Having read and written about this, Dr. Guzzardi “had a reasonable pretension to knowledge about whether sobriety tests have been scientifically validated to detect drug impairment. This was within the course of “knowledge, intelligence, and experience,” even if he had not personally administered sobriety exercises as a police offer would in the field…[T]here was no basis for the opinion to be completely excluded.”
Id.
The bottom line is simple: an expert won’t be disqualified for lacking hands-on experience, and reading and studying suffice. Three lessons follow:
- If that’s all you can get but you need an expert, run with it;
- Opposing counsel won’t get sun an expert excluded, and if that happens the risk of reversal on appeal is substantial; and
- The opponent will do better to make the simple point – you read about it but you don’t do it.