Evaluating The Admissibility Of Expert Testimony
Posted August 26, 2023 in Uncategorized
WHEN IS EXPERT TESTIMONY USED IN A LAWSUIT?
Early in the pre-trial phase of a lawsuit, attorneys will often contemplate whether your case would be benefitted by the use of an expert witness. And, once that expert is secured, they will come into play in the “Discovery” phase of a typical civil lawsuit.Typically, expert witness opinions will first be used in the form of written reports. Then, the expert will prepare to testify at deposition and trial. Importantly, before trial, the attorneys will argue that certain portions (or the whole) of an expert’s expected testimony will not be admissible at trial and should therefore be excluded.
COLORADO RULE OF EVIDENCE 702 AND SHRECK
Colorado Rule of Evidence (“CRE”) 702 provides that expert testimony is admissible only when it “will assist the trier of fact to understand the evidence or to determine a fact in issue.”[1] “An expert opinion should only be excluded if it is superfluous, a waste of a jury’s time, and not helpful.”[2]
In People v. Shreck, the Colorado Supreme Court clarified the process for determining the admissibility of scientific testimony through four analytical steps which require that: (a) the opinion and the knowledge on which the opinion is based be reasonably reliable; (b) the expert is qualified to give the opinion; (c) the testimony will assist the jury, and (d) the probative value is not outweighed by the danger of unfair prejudice or the other trial concerns of Rule 403.[3]
ELEMENT ONE: SCIENTIFIC METHOD/PROCEDURE
In assessing the first element of the Shreck framework, expert testimony must be grounded in “the methods and procedures of science rather than subjective belief or unsupported speculation.”[4] Speculative testimony that would be unreliable and therefore inadmissible under CRE 702 is opinion testimony that has no analytically sound basis.[5]
ELEMENT TWO: EXPERT QUALIFICATIONS
The second element’s inquiry of whether a witness is qualified to give expert testimony focuses on the reliability and relevance of the proffered evidence and requires a determination as to (a) the reliability of the scientific principles, (b) the qualifications of the witness, and (c) the usefulness of the testimony to the jury.[6] “Red flags” that may caution a court against certifying a witness as an expert include: (a) reliance on anecdotal evidence; (b) improper extrapolation; (c) failure to consider other possible causes; (d) lack of testing; (e) subjectivity; and (f) that a purported expert’s opinion was prepared solely for litigation.[7]
ELEMENT THREE: USEFULNESS TO THE JURY
The third Shreck element requires a commonsense inquiry into whether the subject is one that is beyond the understanding and expertise of the average juror, so that the testimony can enlighten and inform lay persons without expertise in a specialized field.[8] A trial court is not required to admit expert testimony on an issue that the trial court is capable of resolving itself.[9] The Colorado Supreme Court in People v. Ramirez provides a further definition of useful expert testimony:
Usefulness means that the proffered testimony will assist the fact finder to either understand other evidence or to determine a fact in issue . . . Usefulness thus hinges on whether there is a logical relation between the proffered testimony and the factual issues involved in the case . . . In determining whether the testimony will be helpful to the fact finder, the court should consider the elements of the particular claim, the nature and extent of other evidence in the case, the expertise of the proposed expert witness, the sufficiency and extent of the foundational evidence upon which the expert witness’s ultimate opinion is to be based, and the scope and content of the opinion itself.[10]
In addition, Colorado Courts have concluded that an expert’s testimony will not be helpful if (a) it is not relevant to an issue in the case; (b) the witness is no more capable than the fact finder of drawing conclusions from the facts; (c) the testimony would intrude upon the judge’s role; (d) it is based on speculation or incomplete data; (e) it is based on questionable theories; (f) there is simply too great an analytical gap between the data and the opinion proffered; or (g) the expert lacks sufficient certainty about the opinion.[11]
Especially relevant to the third Shreck element is the common law principal that “an expert may not usurp the function of the court by determining the applicable law and communicating legal standards to the trier of fact.”[12]While testimony in the form of an opinion or inference is not objectionable merely because it embraces an ultimate issue to be decided by the fact finder, an expert witness cannot tell the jury what result to reach or form conclusions for the jurors that they are competent to reach on their own; such impermissible testimony may include applying the law to the facts to reach a conclusion.[13] Indeed, “even when it is the role of the jury to make legal determinations, an expert testifying as to issues of law may not . . . simply tell the jury what result to reach.”[14]
Another important limitation in determining whether an expert opinion assists the jury is based on the public policy rationale that jurors do not need assistance in assessing the credibility of witnesses; therefore, opinions about a specific witness’s credibility are inadmissible.[15]
ELEMENT FOUR: C.R.E. 403 BALANCING
Finally, the fourth element of the Shreck framework requires a C.R.E. 403 analysis into whether the proffered evidence’s probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence.[16] Shreck additionally requires that the trial court issue specific findings under Rule 403 as to whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.[17]
WHEN ARE EXPERTS NEEDED?
If the testimony passes the four Shreck elements, the court may admit it per C.R.E. 702. Examples where expert analysis and testimony might be needed could include:
- Civil cases that involve emotional distress damages;
- Construction defect disputes that involve specialized knowledge of certain construction methods and components;
- Insurance Bad Faith and coverage disputes;
- Products’ Liability cases that result in physical injury;
- Car accident disputes that involve serious bodily injury and/or brain damage;
- Real Property Title dispute cases that require specialized on-location research and/or surveying; and
- Civil cases that involve an economic valuation of a business or asset.
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DISCLAIMER
The information contained on this website is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter. Laws frequently change and therefore this content is not necessarily up to date, nor comprehensive. Contact us or another attorney with any legal questions specific to your matter. You may request a consultation by calling us as 303-268-2867 or completing a consultation request form.
[1] People v. Shreck, 22 P.3d 68 (Colo. 2001); Masters v. People, 58 P.3d 979 (Colo. 2002).
[2] People v. Lanari, 811 P.2d 399, 402 (Colo. App. 1989), rev’d on other grounds 827 P.3d 979 (1992).
[3] People v. Shreck, 22 P.3d 68, 79 (Colo. 2001); see also Masters v. People, 58 P.3d 979, 989 (Colo. 2002).
[4] People v. Ramirez, 155 P.3d 371, 378 (Colo. 2007).
[6] See C.R.E. 702; People v. Shanks, 2019 COA 160, 467 P.3d 1228 (Colo. App. 2019), cert. denied, 2020 WL 4346688 (Colo. 2020).
[7] People v. Ornelas-Licano, 2020 COA 62, 490 P.3d 714 (Colo. App. 2020).
[8] People v. Cooper, 2021 CO 69, 496 P.3d 430 (Colo. 2021).
[9] Sniezek v. Colorado Dept. of Revenue, 113 P.3d 1280 (Colo. App. 2005).
[10] 155 P.3d 371 (Colo. 2007), as modified on denial of reh’g, (Apr. 16, 2007).
[11] See, e.g., United States v. Rice, 52 F.3d 843, 846-47 (10th Cir. 1995) (discussing relevancy); People v. Lesslie, 939 P.2d 443 (Colo. App. 1996) (comparing witness capabilities to fact-finder capabilities); Grogan v. Taylor, 877 P.2d 1374 (Colo. App. 1993), rev’d on other grounds 900 P.2d 60 (1995) (discussing intrusion upon judge’s role vis a vie testimony about the meaning of the statute of limitations); Pueblo West Metro. Dist. v. Southeastern Colorado Water Conservancy Dist., 717 P.2d 955 (Colo. 1986) (discussing expert testimony based on speculation or incomplete data); Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89 (Colo. App. 1997) (discussing expert testimony based on questionable theories); General Electric Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 519, 139 L.Ed.2d 508 (1997) (discussing “analytical gap” in expert testimony); Pinkham v. Burgess, 933 F.2d 1066, 1071 (1st Cir. 1991) (discussing expert’s certainty about the opinion).
[12] Silverberg v. Colantuno, 991 P.2d 280, 291 (Colo. App. 1998); Sniezek v. Colorado Dept. of Revenue, 113 P.3d 1280, 1284 (Colo. App. 2005).
[13] People v. Baker, 2019 COA 165, Blue Sky L. Rep. (CCH) P 75273, 487 P.3d 1194 (Colo. App. 2019), cert. granted, cross-petition for cert. denied, 2020 WL 2528937 (Colo. 2020).
[14] People v. Lesslie, 939 P.2d 443, 450 (Colo. App. 1996).
[15] People v. Cooper, 2021 CO 69, 496 P.3d 430 (Colo. 2021).