Opinion Evidence – Qualification of Expert and Weight of Testimony
The admissibility of expert testimony on a particular issue is within the discretion of the trial court.[1]
In determining the admissibility of expert testimony, the guiding principle is that expert testimony should be received when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror. [2]
The question of the qualification of a witness to testify as an expert is for the trial court and within its discretion. There is no specific rule as to how an expert witness must have acquired his skill. He may be qualified from actual experience, observation, or study.[3]
A party may qualify as an expert and testify as such. [4]
An expert witness must possess sufficient skill, training, education, knowledge, or experience from which it may reasonably be inferred that the information the expert imparts and any opinion that the expert states is reliable.[5]
The qualifications of the expert may be demonstrated by showing practical experience in the field.[6] The proponent of the expert testimony is entitled to the opportunity to demonstrate the qualifications of the expert, [7] even if the adverse party is willing to concede that the witness is an expert.[8]
The weight to be accorded expert testimony is a matter for the trier of fact.[9]
Although the court must find a witness to be qualified as an expert in order to allow expert testimony, the court may consider the nature and extent of the expert's qualifications in determining the weight to be given the testimony.[10]
An otherwise qualified witness who is not licensed in the field may still give expert testimony.[11] For example, a physician who is not licensed to practice in New York may be permitted to testify as an expert, with the weight of the testimony being for the jury.[12] A physician need not be a specialist in the pertinent field of medicine to qualify as an expert and to offer an opinion.[13]
[1] Dufel v Green, 84 NY2d 795, 622 NYS2d 900, 647 NE2d 105; De Long v County of Erie, 60 NY2d 296, 469 NYS2d 611, 457 NE2d 717; Selkowitz v County of Nassau, 45 NY2d 97, 408 NYS2d 10, 379 NE2d 1140.
[2] De Long v County of Erie, supra; see also Dufel v Green, 84 NY2d 795, 622 NYS2d 900, 647 NE2d 105; People v Cronin, 60 NY2d 430, 470 NYS2d 110, 458 NE2d 351; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140, 386 NYS2d 87, 351 NE2d 735.
[3] Meiselman v. Crown Heights Hospital, 285 N.Y.389, 34 N.E.2d 267 (1941); Slater v. Wilcox, 57 Barb. 604; See Caprara v Chrysler Corp., 52 NY2d 114, 436 NYS2d 251, 417 NE2d 545.
[4] In Thoma v Thoma, 21 A.D.3d 1080, 803 N.Y.S.2d 572 (2d Dept., 2005) the Appellate Division held that Supreme Court erred in precluding the plaintiff, an architect, from testifying as an expert as to the defendant's earning capacity in architecture and interior design on the ground that he was an "adversary." A party may testify as an expert witness. However, since the plaintiff never made an offer of proof as to his qualifications to testify it was impossible to determine whether this error had an effect on the outcome. It held that at the new hearing, the plaintiff should be permitted to attempt to qualify himself as a expert or to submit other expert testimony
[5] Matott v Ward, 48 NY2d 455, 423 NYS2d 645, 399 NE2d 532.
[6] See Caprara v Chrysler Corp., 52 NY2d 114, 436 NYS2d 251, 417 NE2d 545; Locilento v John A. Coleman Catholic High School, 134 AD2d 39, 523 NYS2d 198; McGovern v Riverdale Country School Realty Co., 51 AD2d 894, 380 NYS2d 687.
[7] Werner v Sun Oil Co., 65 NY2d 839, 493 NYS2d 125, 482 NE2d 921.
[8] Id; Counihan v J. H. Werbelovsky's Sons, Inc., 5 AD2d 80, 168 NYS2d 829.
[9] In re Estate of Sylvestri 44 NY2d 260, 405 NYS2d 424, 376 NE2d 897; Topel v Long Island Jewish Medical Center, 76 AD2d 862, 428 NYS2d 507, affd 55 NY2d 682, 446 NYS2d 932, 431 NE2d 293; Felt v Olson, 74 AD2d 722, 425 NYS2d 686, affd 51 NY2d 977, 435 NYS2d 708, 416 NE2d 1043; Adam v Oneonta, 217 AD2d 894, 629 NYS2d 857; Kwasny v Feinberg, 157 AD2d 396, 557 NYS2d 381; Herring v Hayes, 135 AD2d 684, 522 NYS2d 583; Stanley v Ford Motor Co., 49 AD2d 979, 374 NYS2d 370.
[10] Meiselman v Crown Heights Hospital, 285 NY 389, 34 NE2d 367; Commercial Casualty Ins. Co. v Roman, 269 NY 451, 199 NE 658; Hoag v Wright, 174 NY 36, 66 NE 579; Felt v Olson, 74 AD2d 722, 425 NYS2d 686, affd 51 NY2d 977, 435 NYS2d 708, 416 NE2d 1043; Beck v Albany Medical Ctr. Hosp., 191 AD2d 854, 594 NYS2d 844.
[11] See People v Rice, 159 NY 400, 54 NE 48; People v Hood, 47 AD2d 971, 366 NYS2d 696.
[12] Selleck v Board of Education, 276 App Div 263, 94 NYS2d 318.
[13] Forte v Weiner, 200 AD2d 421, 606 NYS2d 220; Farkas v Saary, 191 AD2d 178, 594 NYS2d 195.
The admissibility of expert testimony on a particular issue is within the discretion of the trial court.[1]
In determining the admissibility of expert testimony, the guiding principle is that expert testimony should be received when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror. [2]
The question of the qualification of a witness to testify as an expert is for the trial court and within its discretion. There is no specific rule as to how an expert witness must have acquired his skill. He may be qualified from actual experience, observation, or study.[3]
A party may qualify as an expert and testify as such. [4]
An expert witness must possess sufficient skill, training, education, knowledge, or experience from which it may reasonably be inferred that the information the expert imparts and any opinion that the expert states is reliable.[5]
The qualifications of the expert may be demonstrated by showing practical experience in the field.[6] The proponent of the expert testimony is entitled to the opportunity to demonstrate the qualifications of the expert, [7] even if the adverse party is willing to concede that the witness is an expert.[8]
The weight to be accorded expert testimony is a matter for the trier of fact.[9]
Although the court must find a witness to be qualified as an expert in order to allow expert testimony, the court may consider the nature and extent of the expert's qualifications in determining the weight to be given the testimony.[10]
An otherwise qualified witness who is not licensed in the field may still give expert testimony.[11] For example, a physician who is not licensed to practice in New York may be permitted to testify as an expert, with the weight of the testimony being for the jury.[12] A physician need not be a specialist in the pertinent field of medicine to qualify as an expert and to offer an opinion.[13]
[1] Dufel v Green, 84 NY2d 795, 622 NYS2d 900, 647 NE2d 105; De Long v County of Erie, 60 NY2d 296, 469 NYS2d 611, 457 NE2d 717; Selkowitz v County of Nassau, 45 NY2d 97, 408 NYS2d 10, 379 NE2d 1140.
[2] De Long v County of Erie, supra; see also Dufel v Green, 84 NY2d 795, 622 NYS2d 900, 647 NE2d 105; People v Cronin, 60 NY2d 430, 470 NYS2d 110, 458 NE2d 351; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140, 386 NYS2d 87, 351 NE2d 735.
[3] Meiselman v. Crown Heights Hospital, 285 N.Y.389, 34 N.E.2d 267 (1941); Slater v. Wilcox, 57 Barb. 604; See Caprara v Chrysler Corp., 52 NY2d 114, 436 NYS2d 251, 417 NE2d 545.
[4] In Thoma v Thoma, 21 A.D.3d 1080, 803 N.Y.S.2d 572 (2d Dept., 2005) the Appellate Division held that Supreme Court erred in precluding the plaintiff, an architect, from testifying as an expert as to the defendant's earning capacity in architecture and interior design on the ground that he was an "adversary." A party may testify as an expert witness. However, since the plaintiff never made an offer of proof as to his qualifications to testify it was impossible to determine whether this error had an effect on the outcome. It held that at the new hearing, the plaintiff should be permitted to attempt to qualify himself as a expert or to submit other expert testimony
[5] Matott v Ward, 48 NY2d 455, 423 NYS2d 645, 399 NE2d 532.
[6] See Caprara v Chrysler Corp., 52 NY2d 114, 436 NYS2d 251, 417 NE2d 545; Locilento v John A. Coleman Catholic High School, 134 AD2d 39, 523 NYS2d 198; McGovern v Riverdale Country School Realty Co., 51 AD2d 894, 380 NYS2d 687.
[7] Werner v Sun Oil Co., 65 NY2d 839, 493 NYS2d 125, 482 NE2d 921.
[8] Id; Counihan v J. H. Werbelovsky's Sons, Inc., 5 AD2d 80, 168 NYS2d 829.
[9] In re Estate of Sylvestri 44 NY2d 260, 405 NYS2d 424, 376 NE2d 897; Topel v Long Island Jewish Medical Center, 76 AD2d 862, 428 NYS2d 507, affd 55 NY2d 682, 446 NYS2d 932, 431 NE2d 293; Felt v Olson, 74 AD2d 722, 425 NYS2d 686, affd 51 NY2d 977, 435 NYS2d 708, 416 NE2d 1043; Adam v Oneonta, 217 AD2d 894, 629 NYS2d 857; Kwasny v Feinberg, 157 AD2d 396, 557 NYS2d 381; Herring v Hayes, 135 AD2d 684, 522 NYS2d 583; Stanley v Ford Motor Co., 49 AD2d 979, 374 NYS2d 370.
[10] Meiselman v Crown Heights Hospital, 285 NY 389, 34 NE2d 367; Commercial Casualty Ins. Co. v Roman, 269 NY 451, 199 NE 658; Hoag v Wright, 174 NY 36, 66 NE 579; Felt v Olson, 74 AD2d 722, 425 NYS2d 686, affd 51 NY2d 977, 435 NYS2d 708, 416 NE2d 1043; Beck v Albany Medical Ctr. Hosp., 191 AD2d 854, 594 NYS2d 844.
[11] See People v Rice, 159 NY 400, 54 NE 48; People v Hood, 47 AD2d 971, 366 NYS2d 696.
[12] Selleck v Board of Education, 276 App Div 263, 94 NYS2d 318.
[13] Forte v Weiner, 200 AD2d 421, 606 NYS2d 220; Farkas v Saary, 191 AD2d 178, 594 NYS2d 195.
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