Admissible Expert Testimony Based On Inadmissible Evidence

In product liability suit, reversing and remanding summary judgment granted to defendant, due to erroneous exclusion of expert opinion that warnings in the defendant’s service manual were inadequate; the expert could address the adequacy of the defendant's warnings by comparing the defendant’s service manual’s failure to warn with the defendant’s subsequent safety recall instructions (SRIs), which did include a warning; even though the SRIs could not be admitted because they were FRE 407 subsequent remedial measures, this did not undermine the expert’s use of the excluded SRI evidence as the basis for opinion testimony under FRE 703, in Pineda v. Ford Motor Co., 520 F.3d 237 (3d Cir. March 24, 2008) (No. 07-1191)

Under FRE 702, an expert's testimony can be founded upon the expert's opinions or inferences drawn from firsthand observation perceived before or during trial, in and out of court. Under FRE 703, this evidence underlying the expert testimony does not need not be admitted or to even be admissible, provided it is the type reasonably relied upon by experts in the field. But what can happen when the policies behind FRE 703 emphasizing data commonly used by experts come into conflict with an evidence exclusion such as FRE 407, that excludes otherwise relevant evidence to promote public policy goals? The Third Circuit highlighted this problem in a 2008 examination of the exclusion of such evidence in a product liability appeal.

In the case, Plaintiff Pineda was injured by the shattering liftgate glass on a Ford Explorer. Pineda’s injury occurred in his work place where he was replacing components of an Explorer’s rear liftgate so that it would close properly. In tightening the fixtures on the liftgate,the glass exploded injuring his leg. He filed a product liability suit and sought to admit testimony by his expert (Clauser) regarding an alleged design defect as well as a failure to warn. Ultimately, the plaintiff proceeded only on a theory of failure to warn of the dangerous condition of the glass. Defendant sought to exclude testimony by Clauser, which was granted when the court's Daubert hearing concluded the expert was not qualified. Absent the plaintiff's expert testimony, the trial court granted summary judgment for the defendant and the plaintiff appealed.

In the appeal, the plaintiff argued that the exclusion of Clausen's expert testimony was an error. The Third Circuit agreed, noting that the plaintiff’s expert could provide an opinion on the adequacy of the product warning, even though he professed not to be a “warnings expert.” Pineda, , 520 F.3d at 242. The circuit found his education and experience rendered him qualified to give the testimony that he provided, even if he might not be deemed to be the “best qualified.” Even though the witness did not claim to be a warnings expert, he could opine on the need for a warning on the danger of shattering; his advanced degree in engineering and his quality control experience made his testimony that the forces exerted on the product was an “engineering problem” that could have “a solution” in “a proper” warning. Pineda, , 520 F.3d at 245.

After deeming the plaintiff's expert qualified to testify, the circuit noted that the trial court excluded his testimony because the witness compared the defendant’s service manual’s failure to warn with the defendant’s subsequent safety recall instructions, which did include a warning. The court excluded the testimony because the subsequent recall instructions were a subsequent remedial measure and this evidence could not be admitted at trial. The circuit noted that while the evidence might be barred under FRE 407, this did not exclude an expert’s use of inadmissible evidence in order to render an opinion under FRE 703. The circuit reached this conclusion by way of this fascinating observation:

The District Court and the parties conflate the separate issues of whether the SRI itself can be admitted into evidence and whether Clauser's opinion can be admitted if it is based on a consideration of the SRI. Rule 703 is clear that the SRI does not need to be admissible evidence in order for Clauser's opinion that the 2002 service manual lacked adequate instructions and warnings to be admitted. The Rule's only requirement is that the data be “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” We find that it is reasonable for an engineer to rely upon a warning and alternative safety instruction subsequently issued by a manufacturer in forming an opinion that an earlier service manual fails to provide adequate instructions and warnings to automobile technicians. Thus, despite Rule 407's general exclusion of subsequent remedial measure evidence, we hold that Rule 703 permits Clauser to base his opinion on a consideration of the SRI.

Pineda, , 520 F.3d at 245. <

In this particular, the circuit noted the impact on FRE 703 of an amendment that was made in 2000. The amendment "permits otherwise inadmissible evidence to be disclosed to the jury if the trial court determines that the probative value in assisting the jury substantially outweighs the prejudicial effect." Pineda, , 520 F.3d at 245.

Yet, the circuit warned that the issue was not a simple one because:

[T]he Rule's balancing test clearly establishes a presumption against disclosure to the jury of otherwise inadmissible evidence. See Fed.R.Evid. 703 advisory committee's notes (2000 Amendments). While we express no opinion as to whether the SRI should be admitted into evidence, the advisory committee's notes implicitly endorse the possible solution proposed by Pineda with regard to a limiting instruction: “If the otherwise inadmissible information is admitted under this balancing test, the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes.”

However, Rule 703's presumption against the disclosure of otherwise inadmissible evidence is only applicable when the evidence is offered by the proponent of the expert. If Ford elects to cross-examine Clauser on the bases of his opinion, which would include the SRI, it would become part of the record for the jury to consider. See Fed.R.Evid. 705 (“The expert may in any event be required to disclose the underlying facts or data [supporting his opinion] on cross-examination.”)

Pineda, , 520 F.3d at 247 n.14 (citing Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir.2002) (“Rule 705, together with Rule 703, places the burden of exploring the facts and assumptions underlying the testimony of an expert witness on opposing counsel during cross-examination.”)).

Federal Rules of Evidence
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