Wednesday, November 21, 2007
Take Me To Another Place?: Recent Decision Reveals Tennessee's Heightened Skepticism of Expert Opinion Evidence
The recent opinion of the United States District Court for the Eastern District of Tennessee in Brooks v. Wal-Mart Stores East, L.P., 2007 WL 3389925 (E.D. Tenn. 2007), reveals that the proponent of expert opinion evidence in cases governed by the Tennessee Rules of Evidence bears a higher burden than the proponent of expert evidence in cases goverened by the Federal Rules of Evidence. In Brooks, the plaintiff sued Wal-Mart, alleging that its superstore in Tennessee allowed water to accumulate on the concrete floor of the entrance, causing her to slip and fall and suffer at least $750,000 in damages.
Wal-Mart then brought a motion for summary judgment dismissing the complaint, and the court granted the motion while noting the distinctions between federal and Tennessee law. Under Federal Rule of Evidence 702, as amended in the wake of the Supreme Court's ruling in Daubert, in order for expert opinion evidence to be admissible, it must assist the trier of fact to understand the evidence or determine a fact in issue, be given by a qualified witness, and (1) be based upon sufficient facts or data, (2) be the product of reliable principles and methods, and (3) be based upon a reliable application of the principles and methods to the facts of the case. The requirement that the expert's opinion "assist the trier of fact" is essentially a restatement of Federal Rule of Evidence 403, which holds that a judge may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, etc.
Conversely, under Tennessee Rule of Evidence 702, expert opinion evidence is only admissible if it will "substantially assist the trier of fact" to understand the evidence or determine a fact in issue. (emphasis added). Courts have consistently held that the addition of the word "substantially" is not merely a semantic difference in the Tennesse Rules of Evidence but instead reflects the fact that the burden for admissible expert opinion evidence "under the Tennessee Rules of Evidence is higher than [under] the Federal rule." Brooks, 2007 WL at *1 n.1. In other words, Tennessee requires that expert opinion testimony have stronger "probative force" than expert opinion testimony presented under the federal rules. See, e.g., State v. Prentice, 113 S.W.3d 326, 334 (Tenn.Crim.App. 2001).
In my search through Tennessee case law, however, I was unable to determine exactly how it modifies the Rule 403 balancing test. Obviously, as under the Federal Rules, relevant expert opinion evidence under Tennessee law is inadmssible if its probative value is substantially outweighed by the danger of unfair prejudice, etc., but is it inadmissible if its probative value is merely outweighed by the danger of unfair prejudice, etc., but not to a substantial degree? Or does Tennessee law actually require that the probative value of relevant expert opinion evidence outweigh the danger of unfair prejudice, etc.? As facr as I can tell, not Tennessee court has laid out the exact contours of the balancing test.
What I can say, though, is that a search through Tennessee case law and a recent decision in another state reveals that Tennessee's rules will often place its courts at odds with federal courts and most other state courts. I've blogged before about the infamous Moe Gibbs case, which recently ended with Gibbs being found guilty of murder. (As I noted before, I think that Gibbs has good ground for appeal based upon the court's incorrect rule of completeness ruling). A key piece of testimony in the Gibbs' case was the expert opinion testimony of a doctor that the amount of DNA evidence belonging to Gibbs found under the victim's fingernails was the result of "vigorous physical contact" between the two and not the result of a secondary transfer which might have resulted from the two touching a common item.
Conversely, in State v. Williams, 2006 WL 3431920 (Tenn.Crim.App. 2006), the Court of Criminal Appeals of Tennessee found that a Tennessee trial court erred by allowing an expert to opine that the amount of the defendant's DNA found under the victim's fingernails suggested that it was the result of something more than casual contact because the opinion lacked sufficient probative force.