FRE 702 Does Not Require That Medical Expert Testimony Be Based On “A Reasonable Medical Certainty”

State tort law standard was not required under FRE 702, as noted in United States v. Two Elk, 536 F.3d 890 (8th Cir. 2008)

Is medical expert testimony required to be “based upon a reasonable medical certainty” under FRE 702? This issue was presented in a recent sexual abuse case. The Eighth Circuit answered in the negative as a result of defendant Two Elk's prosecution for aggravated sexual abuse of a child under the age of twelve. At his trial, a medical expert testified concerning the injuries of the minor, including that her injuries were “not acute in the sense that [they] happened say within a few hours of the time that she arrived” with the qualification that it was “hard to determine actually what period of time it could have taken place.” United States v. Two Elk, 536 F.3d 890, 904 n.14.

These medical conclusions were “based upon [his] experience and education and training,” including more than twenty years of experience in emergency rooms. Id. at 904 n.14. The defendant claimed the medical opinion testimony was inadmissible because it was not “based upon a reasonable medical certainty.”

The circuit noted that FRE 702 did not require that the medical testimony be “based upon a reasonable medical certainty.” More to the point, the medical expert testimony satisfied FRE 702 standards and could assist the jury in deciding the facts of the case. The opposing party could then test the expert opinion under cross-examination. Id. at 904 (citing Olson v. Ford Motor Co., 481 F.3d 619, 627 (8th Cir. 2007) (noting it is “up to the opposing party to examine the factual basis for the opinion in cross-examination”) (quotation omitted); cf. Kudabeck v. Kroger Co., 338 F.3d 856, 861 (8th Cir. 2003) (“nothing in Rule 702, Daubert, or its progeny requires that an expert resolve an ultimate issue of fact to a scientific absolute in order to be admissible”) (quotation omitted))]

The defense argument was premised on Graham v. Ozark Mountain Sightseeing, Inc., 181 F.3d 924, 926 (8th Cir. 1999) (“Because the Grahams rely on medical experts, the doctors must testify to a reasonable medical certainty that but for defendants' negligence Juanita's death would not have occurred. Expert testimony that defendants "probably" or "likely" caused the harm is insufficient unless there is additional evidence of causation or it is clear from the context that the doctor intended to express a definite opinion.”) (state court citations omitted). The circuit noted that the reliance on Graham was misplaced. In Graham, the requirement of medical certainty was based on state substantive law for tort claims and was required to be applied in federal court under the Erie doctrine. The state standard did not apply in the federal criminal case.

Federal Rules of Evidence
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