Changes in Washington Practice Report (#13) / Expert testimony

March 11, 2014

health-care-lawThis is installment #13 in a continuing series of Changes in Washington Practice Reports.

The issue of “expert testimony” is quite a major topic these days. With the rapid changes taking place in technology, no longer is the description of an “expert” as stable as it often has been in the past.

Information about this issue may be found in Evidence by Tegland (volumes 5 to 5C of Washington Practice).

Searches for such materials in Washington Practice can take place by direct reference to volumes 5 to 5C, or by reference to volume 1A of Methods of Practice for overview summaries of the related evidence materials.

As noted by Tegland in volume 5B of Evidence, “the admissibility of expert testimony under (Evidence) Rule 702 will depend on whether the witness qualifies as an expert….”

It used to be that a near-consensus could be reached in many professional fields about the “body of knowledge” that constituted each field, and how an expert could be determined from this starting point.

However, this is no longer the case.

In many professional fields today, there are disagreements about the knowledge and presumptions of the fields. There may be opposing “camps” regarding conflicting theories and interpretations of experiments.

How, then, is an expert to be determined? As noted by Tegland, Rule 702 states very broadly that a witness may qualify as an expert by virtue of knowledge, skill, experience, training, or education.”

Emphasis is on “whether the witness could be helpful to the trier of fact….”

But these definitions seem to evade the issue. How can an expert assist the trier of fact when the person represents only one “school of thought about a subject?

How is the court to determine the insights that could be made available by other schools of thought?

As stated by Tegland, according to the Frye rule, testimony about a “theory or method must be one that is generally accepted in the scientific community….” It seems that in some situations, this is a difficult determination to make.

In the 2013 pocket part to volume 5B, Tegland notes that the Frye rule applies in summary judgment proceedings. In a recent case, the court found that when an expert stated that he was making an “educated guess”, this was not a sufficiently “expert” justification for testimony(Lake Chelan…v. St. Paul…, 167 Wash.App. 28, 272 P3d 249 (Div. 1, 2011), remanded by the Supreme Court in 2012).

As Tegland observes, this case illustrated “the importance of…showing that the expert is applying a generally accepted theory….”

But if application of the Frye rule depends on self-assessment by proposed experts, it seems that much room is left for the personal perspectives of the expert to sway how testimony is presented and assessed.

Attorneys can search for needed resource materials by reviewing the individual volumes of Washington Practice, or by starting with the summaries and search strategies available in Methods of Practice.

For additional information regarding the extracts, summaries and other legal resource materials to be found in Methods of Practice, refer to volumes 1 to 1C of Washington Practice, by Cheryl Mitchell and Ferd Mitchell of Mitchell Law Office.