Expert Testimony On Professional Standards

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A common requirement in professional liability cases concerns the need for expert testimony under FRE 702 to clarify the standards of professional conduct applicable in the case. Frequently this type of expert testimony may be attacked as unhelpful to the jury for providing impermissible legal conclusions, rather than educating the jury about the applicable standards. requirements. The Seventh Circuit recently examined this problem and sought to illustrate the distinction between expert testimony describing an applicable professional standard and expert testimony applying that standard, in Jimenez v. City of Chicago, _ F.3d _ (7th Cir. Oct. 7, 2013) (No. 12-2779)

Need For Evidence On Standards In The Profession

The need for evidence on professional standards arose in a case in which a jury awarded $25 million in damages to a man who had been accused by a detective -- falsely it turned out -- of committing a murder. Plaintiff Jimenez was imprisoned for 16 years before he was exonerated of a murder that he did not commit. He filed a Section 1983 civil rights action against the city and the city police department detective who had managed the city's police investigation. The plaintiff sought compensatory damages for malicious prosecution and due process violations. After a jury returned a verdict for the plaintiff, the defendants appealed alleging the trial court should not have admitted expert testimony "about reasonable practices for police investigations and how the investigation" had "departed from those practices." Because "'reasonableness' is a legal conclusion," contended the defendants, the expert testimony should not have been admitted at trial regarding "the steps and procedures involved in a 'reasonable and prudent' police investigation." Jimenez, _ F.3d at _.

Admissible Professional Standards vs. Excludable Legal Conclusions

The Seventh Circuit acknowledged there was a fine line to be observed in admitting the expert testimony, and that the line had not been crossed in the case. The court rejected the defense argument that the expert testimony "regarding reasonable police practices was intertwined with probable cause, a legal standard, and thus ... should not have been permitted." The circuit dismissed the claim that the witness's testimony had veered into legal opinion evidence. The record at trial did not disclose any instance in which the expert offered an opinion "as to probable cause at any stage of the investigation" of plaintiff. Instead, the circuit described the expert as having:

testified about the steps a reasonable police investigator would have taken to solve the [charged] murder, as well as the information that a reasonable police investigator would have taken into account as the investigation progressed. He did not try to resolve conflicts in the testimony of different witnesses. He also did not offer an opinion regarding whether the police had probable cause to arrest Jimenez. He did point out ways in which evidence from other witnesses indicated that [defendant police detective] Bogucki and his police colleagues departed from reasonable investigation methods. ... [Plaintiff expert]'s testimony thus would have helped the jury conclude that the departures from reasonable police practices were so important, severe, and numerous that they supported an inference that [defendant] Bogucki acted deliberately to violate Jimenez's rights. Such use of McCrary's testimony would not transform it into an impermissible legal opinion.

Jimenez, __ F.3d at __.

The circuit noted that the expert testimony had "direct implications for applying legal standards such as probable cause," as well as whether the defendant "deliberately failed to comply with his obligations under Brady v. Maryland, [373 U.S. 83 (1963)] and the Due Process Clause of the Fourteenth Amendment." But it was these direct implications that rendered the expert testimony so relevant in the case:

When an expert offers an opinion relevant to applying a legal standard such as probable cause, the expert's role is “limited to describing sound professional standards and identifying departures from them.” That's exactly what [expert] McCrary did here. The district court drew the line properly so that McCrary's testimony did not stray into impermissible territory.

Jimenez, __ F.3d at __ (quoting West v. Waymire, 114 F.3d 646, 652 (7th Cir. 1997); Abdullahi v. City of Madison, 423 F.3d 763, 772 (7th Cir. 2005) (noting that expert testimony could be relevant to jury in determining whether officers deviated from reasonable police practices)).

General Rule

The circuit noted that the problem with professional liability cases differs from that governing proof in other case types:

In constitutional tort cases, expert testimony regarding sound professional standards governing a defendant's actions can be relevant and helpful. Liability for constitutional torts is more limited in scope than common law tort liability. Negligence is not sufficient. Expert testimony regarding relevant professional standards can give a jury a baseline to help evaluate whether a defendant's deviations from those standards were merely negligent or were so severe or persistent as to support an inference of intentional or reckless conduct that violated a plaintiff's constitutional rights.

Jimenez, __ F.3d at __ (citing Daniels v. Williams, 474 U.S. 327 (1986)).

The circuit noted two other Seventh Circuit cases, involving medical professional liability issues -- that seemed to reach the same conclusion. But the different profession to which the standard was attached made no difference because "the same principle extends to police investigations":

  1. Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006) (“To infer deliberate indifference on the basis of a physician's treatment decision, the decision must be so far afield of accepted professional standards as to raise the inference that it was not actually based on a medical judgment.”)
  2. Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998) (“A plaintiff can show that the professional disregarded the need only if the professional's subjective response was so inadequate that it demonstrated an absence of professional judgment, that is, that no minimally competent professional would have so responded under those circumstances.”)

Conclusion

As already noted, the Jimenez case suggests a few factors that might help distinguish expert testimony about a professional standard from testimomy applying a standard. These include:

  • Reasonable Steps: Identification of "steps a reasonable [professional] would have taken to solve" the problem posed
  • Reasonable Information: Identification of "information that a reasonable [professional] would have taken into account"
  • Winners Or Losers: Avoiding testimony that tries to "resolve conflicts in the testimony of different witnesses."
  • Legal Conclusions: Avoiding opining on whether the professional actor applied her skills appropriately.
  • Affirmation: Avoiding opining about "ways in which evidence from other witnesses indicated" satisfaction or dissatisfaction of professional standards.

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