ADMISSION OF EXPERT WITNESS TESTIMONY IN INDIANA
*The following analysis is taken from Arthur, CIVIL TRIAL RULE HANDBOOK,
22B Indiana Practice §26:9 (Thomson 2009)
§ 26:9
►
Admission of expert opinions; Indiana's application of Daubert
The admission of expert evidence is governed largely by ►Indiana
Evidence Rules 104, 403, 702 and 703.1 The trial court is a “gatekeeper”
charged with responsibility for controlling the admission of expert evidence. 2 The
court is vested with broad discretion to perform this function, 3 and its
determination of whether a witness is qualfied to testify as an expert is reviewed
on appeal for abuse of discretion.4 Expert evidence must be sufficiently valid or
trustworthy to assist the trier of fact to understand the evidence or to determine a
fact in issue.5 The court must find that the expert is qualified to give an opinion
1►
Arthur, Civil Trial Practice §21.34 (2d ed.).
►
2►
►
Steward v. State, 652 N.E.2d 490 (Ind. 1995); Ford Motor Co. v. Moore, 905
N.E.2d 418 (Ind. Ct. App 2009); ►Norfolk Southern Ry. Co. v. Estate of Wagers,
833 N.E.2d 93 (Ind. Ct. App. 2005); ►PSI Energy, Inc. v. Home Ins. Co., 801
N.E.2d 705 (Ind. Ct. App. 2004).; accord, ►Carter v. State, 766 N.E.2d 377, 381
(Ind. 2002).
3►
►
Carter v. State, 766 N.E.2d 377 (Ind. 2002); Cox v. Matthews, 901 N.E.2d 14
(Ind. Ct. App. 2009); ►Sears Roebuck and Co. v. Manuilov, 742 N.E.2d 453 (Ind.
2001); ►Lohrmiller v. State, 884 N.E.2d 903 (Ind. Ct. App. 2008); ►Shafer &
Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475
(Ind. Ct. App. 2007), transfer denied, 891 N.E.2d 44 (Ind. 2008).
4►
►
Lohrmiller v. State, 884 N.E.2d 903 (Ind. 2008); Cox v. Matthews, 901 N.E.2d
14 (Ind. Ct. App. 2009); Burns-Kish Funeral v. Kish Funeral Homes, 889 N.E. 2d
15 (Ind. Ct. App. 2008).
5►
►
Evidence Rule 702(a); Lohrmiller v. State, 884 N.E.2d 903 (Ind. 2008); BurnsKish Funeral v. Kish Funeral Homes, 889 N.E. 2d 15 (Ind. Ct. App. 2008);►Shafer
& Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d
475 (Ind. Ct. App. 2007), transfer denied, 891 N.E.2d 44 (Ind. 2008); ►Norfolk
based on his knowledge, skill, experience, training, or education. 6 Formal
education in a certain field is not a prerequisite, so long as the expert can
demonstrate, through experience and training, an expertise to give the opinion. 7
The party offering the expert evidence has the burden of establishing the expert's
proper credentials.8 Two-types of expert evidence are recognized: (1) scientific
evidence, and (2) non-scientific evidence that is based on an expert's
“specialized knowledge or experience.” The former is tied to the requirements of
►Evidence Rule 702(b), the later is not.9
►
(1) Scientific Expert Evidence: Scientific expert evidence must rest upon
scientific principles that are reliable under ►Evidence Rule 702(b).10 The party
Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93 (Ind. Ct. App. 2005);
►Smith v. Yang, 829 N.E.2d 624 (Ind. Ct. App. 2005).
6►
►
Fueger v. Case Corp., 886 N.E. 2d 102 (Ind. Ct. App. 2008).
7►
►
Norfolk Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93 (Ind. Ct. App.
2005); ►Messer v. Cerestar USA, Inc., 803 N.E.2d 1240 (Ind. Ct. App. 2004).
8►
►
Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128 (Ind. 2005); Kempf Cont. &
Design, Inc. v. Holland-Tucker, 892 N.E.2d 672 (Ind. Ct. App. 2008); ►Kouach v.
Alpharma, Inc., 890 N.E. 2d 55 (Ind. Ct. App 2008); ►Fueger v. Case Corp., 886
N.E. 2d 102 (Ind. Ct. App. 2008).
9►
►
Malinski v. State, 794 N.E.2d 1071 (Ind. 2003).
10►
►
Evidence Rule 702(b); ►Fueger v. Case Corp., 886 N.E. 2d 102 (Ind. Ct. App.
2008). Scientific methodology is based on generating hypotheses and testing
them to see if they can be falsified; this methodology distinguishes science from
other fields of human inquiry. ►Evidence Rule 702 places appropriate limits on
the admissibility of purportedly scientific evidence by assigning to the trial court
the task of ensuring that an expert's testimony both rests on a reliable foundation
and is relevant. Pertinent evidence based on scientific valid principles will satisfy
both demands. ►Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469, 37 Fed. R. Evid. Serv. 1 (1993). A court must
make a preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and whether that reasoning or
methodology properly can be applied to the facts in issue. Proffered scientific
evidence requires a valid scientific connection to the pertinent inquiry as a
precondition to admissibility. Any inference or assertion must be derived by the
offering expert testimony has the burden of proving both reliability and
relevancy.11 Evidence that is not reliable under ►Evidence Rule 702(b) does not
assist the trier of fact as required by ►Evidence Rule 702(a). Accordingly,
reliability is a threshold issue for the admission of scientific expert evidence. 12 No
specific tests or factors are mandated in making an analysis under ►Evidence
Rule 702(b).13 The court must assess whether the scientific methodology is valid
and whether it can be applied properly to the facts in the case. 14 Scientific
scientific method. If this nexus is not sufficiently established, the trial court may
conclude that the analytical gap between the data and the opinion proffered is
too great. ►Lytle v. Ford Motor Co., 696 N.E.2d 465 (Ind. Ct. App. 1998); accord,
►Steward v. State, 652 N.E.2d 490 (Ind. 1995) (reliability may be established by
judicial notice). Expert testimony must be supported by appropriate validation or
good grounds based on what is known, establishing a standard of evidentiary
reliability. ►Norfolk Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93 (Ind. Ct.
App. 2005); ►Lytle v. Ford Motor Co., 814 N.E.2d 301 (Ind. Ct. App. 2004). Once
a court has admitted expert evidence, the accuracy, consistency and credibility of
the evidence will be subject of cross-examination, rebuttal evidence, argument of
counsel, and resolution by trier of fact. ►Sears Roebuck and Co. v. Manuilov, 742
N.E.2d 453 (Ind. 2001).
11►
►
Kempf Contracting & Design, Inc., v. Holland-Tucker, 892 N.E. 2d 672 (Ind. Ct.
App. 2008); ►Norfolk Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93 (Ind.
Ct. App. 2005); ►Lytle v. Ford Motor Co., 814 N.E.2d 301 (Ind. Ct. App. 2004);
accord, ►Shafer & Freeman Lakes Environmental Conservation Corp. v.
Stichnoth, 877 N.E.2d 475 (Ind. Ct. App. 2007), transfer denied, 891 N.E.2d 44
(Ind. 2008).
12►
►
PSI Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705 (Ind. Ct. App. 2004);
Wallace v. Meadow Acres Manufactured Housing, Inc., 730 N.E.2d 809 (Ind. Ct.
App. 2000). The reliability requirement under ►Evidence Rule 702 may be
established by judicial notice or a sufficient foundation to convince the trial court
that the relevant scientific principles are reliable. ►Malinski v. State, 794 N.E.2d
1071 (Ind. 2003).
►
13►
►
Kempf Contracting and Design, Inc., v. Holland-Tucker, 892 N.E. 2d 672 (Ind.
Ct. App. 2009); ►Shafer & Freeman Lakes Environmental Conservation Corp. v.
Stichnoth, 877 N.E.2d 475 (Ind. Ct. App. 2007), transfer denied, 891 N.E.2d 44
(Ind. 2008) (court must be satisfied that scientific principles are reliable).
14►
►
Kempf Contracting and Design, Inc., v. Holland-Tucker, 892 N.E. 2d 672 (Ind.
Ct. App. 2008); ►Kovach v. Alpharma, Inc., 890 N.E.2d 55 (Ind. Ct. App. 2008);
knowledge is more than a subjective belief, unsupported speculation, or
coincidence.15 In Daubert v. Merrell Dow Pharmaceuticals, Inc.16 the United
States Supreme Court identified several factors that should guide a court in
assessing whether an expert opinion is reliable: empirical testing, peer review
and publication, potential rate of error, and standards imposed by the industry or
community. The Daubert factors are routinely used by Indiana courts to
determine whether an expert opinion has a reliable foundation, 17 although these
factors are not exclusive or controlling on the question of reliability18 and the
court's inquiry must be flexible and liberal.19
(2) Non-scientific Expert Evidence: Where evidence is based upon an
expert's “specialized knowledge,” rather than on the application of scientific
principles, the subject matter of the evidence must relate to some field beyond
the knowledge of lay persons, and the expert must possess sufficient skill,
►
Fueger v. Case Corp., 886 N.E. 2d 102 (Ind. Ct. App. 2008);
Cerestar USA, Inc., 803 N.E.2d 1240 (Ind. Ct. App. 2004).
►
Messer v.
15►
►
McGrew v. State, 682 N.E.2d 1289 (Ind. 1997); ►Kovach v. Alpharma Inc., 890
N.E. 2d 55 (Ind. Ct. App. 2008); ►Norfolk Southern Ry. Co. v. Estate of Wagers,
833 N.E.2d 93 (Ind. Ct. App. 2005); ►Lytle v. Ford Motor Co., 814 N.E.2d 301
(Ind. Ct. App. 2004); ►Messer v. Cerestar USA, Inc., 803 N.E.2d 1240 (Ind. Ct.
App. 2004).
16►
►
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469, 37 Fed. R. Evid. Serv. 1 (1993).
17►
See, ►Kempf Contracting and Design v. Holland-Tucker, 892 N.E.2d 672 (Ind. Ct.
App. 2008); ►Kouach v. Alpharma, Inc., 890 N.E.2d 55 (Ind. Ct. App. 2008).
18►
►
Malinski v. State, 794 N.E.2d 1071 (Ind. 2003); ►Kempf Contracting & Design v.
Holland-Tucker, 892 N.E. 2d 672 (Ind. Ct. App. 2008); ►Shafer & Freeman Lakes
Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475 (Ind. Ct. App.
2007), transfer denied, 891 N.E.2d 44 (Ind. 2008); ►Smith v. Yang, 829 N.E.2d
624 (Ind. Ct. App. 2005); accord, ►McGrew v. State, 682 N.E.2d 1289 (Ind.
1997).
19►
►
Norfolk Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93 (Ind. Ct. App.
2005); accord, ►Carter v. State, 766 N.E.2d 377 (Ind. 2002); ►Sears Roebuck
and Co. v. Manuilov, 742 N.E.2d 453 (Ind. 2001).
knowledge or experience in that field to assist the trier of fact as required by
►Evidence Rule 702(a).20 Scientific verification is not required for the admission
of “specialized knowledge-type” expert evidence.21
Expert evidence must be relevant -- meaning it must be logically
connected and tend to prove or disprove a matter in issue. 22 Once an adequate
foundation for admitting the expert evidence has been established, the court
must apply ►Evidence Rule 403, and weigh the probative value of the evidence
against the danger of unfair prejudice, confusion of the issues, misleading the
jury, considerations of undue delay, or the needless presentation of cumulative
evidence. 23
20►
►
Malinski v. State, 794 N.E.2d 1071 (Ind. 2003); ►Jervis v. State, 679 N.E.2d 875
(Ind. 1997) (observations of a witness with specialized knowledge and the
physical evidence related to it are not “scientific principles” governed by
►Evidence Rule 702(b)); ►Kouach v. Alpharma, Inc., 890 N.E. 2d 55 (Ind. Ct.
App. 2008); ►Fueger v. Case Corp., 886 N.E. 2d 102 (Ind. Ct. App. 2008); ►PSI
Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705 (Ind. Ct. App. 2004) (although an
expert's opinion was not peer reviewed, written down, or even heard of in the
relevant scientific community, it was admissible because the underlying theory
was based upon relatively simple concepts and specialized knowledge).
21►
►
Malinski v. State, 794 N.E.2d 1071 (Ind. 2003); ►Norfolk Southern Ry. Co. v.
Estate of Wagers, 833 N.E.2d 93 (Ind. Ct. App. 2005) (where an expert's
testimony is based upon the expert's skill or experience rather than on the
application of scientific principles, the proponent of the testimony must only
demonstrate that the subject matter is related to some field beyond the
knowledge of lay persons and that the witness possesses sufficient skill,
knowledge or experience in the field to assist the trier of fact to understand the
evidence or to determine a fact in issue).
22►
►
Norfolk Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93 (Ind. Ct. App.
2005); ►Hannan v. Pest Control Services, Inc., 734 N.E.2d 674 (Ind. Ct. App.
2000).
23►
►
Evidence Rule 403; ►Carter v. State, 766 N.E.2d 377 (Ind. 2002); ►Steward v.
State, 652 N.E.2d 490 (Ind. 1995); ►Harrison v. State, 644 N.E.2d 1243 (Ind.
1995); ►Norfolk Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93 (Ind. Ct.
App. 2005); ►Ollis v. Knecht, 751 N.E.2d 825 (Ind. Ct. App. 2001) (introduction of
evidence with an unknown probative value regarding the only issue to be decided
by the jury could be prejudicial to the opposing party and could cause confusion
amongst the jury by giving them extraneous information to consider).