EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, December 22, 2011

Take Me To Another Rule: Supreme Court Of Tennessee Finds Court Of Appeals Applied Wrong Version Of Rule 703

Similar to its federal counterpartTennessee Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness. (emphasis added).

The third, bolded sentence in Rule 703 was not added until 2009, however, and the appeal that the Supreme Court of Tennessee heard in Holder v. Westgate Resorts Ltd., 2011 WL 6148588 (Tenn. 2011), was from a case that took place before it was added. So, what effect did this have on the court's decision?

In Holder

James Holder sustained multiple injuries when he fell down a stairway while attempting to exit a condominium owned and operated by Westgate Resorts Ltd. ("Westgate"). Mr. Holder and his wife, Laura Holder, filed a complaint against Westgate in the Circuit Court for Sevier County alleging that the configuration of the stairs, the corridor at the top of the stairs, and the doorway through which Mr. Holder was attempting to exit the condominium constituted an unsafe condition. Mr. Holder further alleged that Westgate knew or should have known of the unsafe condition and that Westgate's failure to warn Mr. Holder or correct the condition caused his injuries. Mrs. Holder asserted a claim for loss of consortium.

At trial,  Westgate presented the expert testimony of James Horner II, the deputy building official for the City of Gatlinburg, who testified that the corridor complied with the applicable code. Specifically,

Mr. Horner testified extensively concerning the applicable building code and his interpretation of the code. The Holders' expert had testified that the applicable building code required a landing width of forty-four inches. Contrary to the testimony of the Holders' expert, Mr. Horner testified that the building code required a landing width of thirty-six inches. Following this testimony, counsel for Westgate asked Mr. Horner whether he consulted any professional resources in his evaluation of this issue. Mr. Horner replied, "To be perfectly honest with you, I felt that I was correct in my reading of it, but I did call the International Code Council and I spoke with them." The trial court then sustained an objection to Mr. Horner's testimony and ordered that "the last question" be diregarded

The jury eventually

returned a verdict finding Westgate ninety percent at fault and Mr. Holder ten percent at fault. The jury assessed damages in the amount of $220,000, which the trial court reduced by ten percent for the comparative fault attributed to Mr. Holder.

Westgate thereafter appealed, claiming that the trial court erred by excluding Mr. Horner's testimony as to the instructions he received from officials of the International Code Council because his testimony was admissible pursuant to Tennessee Rule of Evidence 703. The Court of Appeals of Tennessee agreed with Westgate that this was error but deemed the error to be harmless, prompting Westgate's appeal to the Supreme Court of Tennessee.

The Tennessee Supremes noted that the Court of Appeals of Tennessee applied the post-amendment version of Rule 703, which contains the third, bolded sentence above. According to the court, however, this was erroneous because this version of the rule did not take effect until four months after trial. This meant that

According to the rule in effect at the time of the trial, any admission of the basis of an opinion for the purpose of assisting the jury in understanding the opinion was subject to the provisions of Tennessee Rule of Evidence 403.

This might actually have made it likelier that the testimony should have been admitted because Rule 403 allows for the admission of evidence unless its probative value is substantially outweighed by the danger of unfair prejudice while the third sentence of post-amendment Rule 703 only allows for the admission of otherwise inadmissible evidence if its probative value substantially outweighs its prejudicial effect.

In the end, though, none of this mattered for the Supreme Court of Tennessee, which found that under either rule, otherwise inadmissible evidence underlying an expert's opinion can only be admitted to assist the jury in evaluation the expert's opinion, not to prove the truth of the matter asserted in the underlying evidence. And, according to the court, this made the underlying evidence inadmissible:


Turning to the facts of this case, the trial court prevented Mr. Horner from continuing his testimony concerning his call to the International Code Council. The offer of proof states that Mr. Horner would have testified that he received instruction from the International Code Council and that he conformed his evaluation to the instructions he received. Although this proffer does not directly state the substance of the instructions from the International Code Council, the testimony indirectly does so by confirming the method used by Mr. Horner. The trial court determined that the evidence was offered for the truth of the information provided to Mr. Horner and was therefore hearsay. As such, its admission was not to assist the jury in understanding Mr. Horner's opinion but to insert the opinion of another expert.
Experts routinely consult other experts when forming their opinions. Rule 703, however, does not permit a testifying expert to act as the "mouthpiece" of a non-testifying expert by simply parroting the non-testifying expert's opinion....The opinion to which an expert testifies must be his own.




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