![]() ![]() Asking that physician to testify about opinions that the physician formed in the course of treating the patient does not make the physician a retained expert because the physician was not retained for that purpose.Īs one court explained, a physician is only “retained” if the physician’s testimony is not based on opinions that the physician formed while treating the patient. A treating physician is hired to treat a patient. A non-retained expert is not hired for the specific purpose of giving expert testimony. In federal court, a treating physician who will offer opinions is usually classified as a non-retained expert. How to classify a treating physician who offers opinions about the need for future healthcare is a tricky question. When a treating physician offers a prognosis, however, the physician is offering an opinion, not stating facts. A physician who discusses the significance of a ruptured spleen will probably explain the function of an organ that most people don’t understand.Ĭourts typically classify treating physicians as fact witnesses, even when their explanation of the facts depends on their specialized knowledge. For example, a treating physician will often explain the injuries for which an accident victim was treated. ![]() The line between an expert and a fact witness can be muddied when an expert discusses facts that are not within the common knowledge of lay jurors. ![]() The Daubert standard applies in federal court, while states typically rely on their own version of the Daubert standard, the Frye standard, or a hybrid standard. Whether a qualified expert’s relevant testimony is admissible depends upon whether it satisfies the controlling standard in state or federal court. Every jurisdiction requires the expert to be qualified to render an opinion. Unlike lay witnesses, experts can express opinions if the opinions would help the jury decide an issue that is relevant to the case. An accident reconstruction expert who did not see the blue car cross the centerline and crash into the red car can use the location of debris, gouges in pavement, vehicle damage, and the final resting places of the two vehicles to form the opinion that the blue car crossed the centerline. Expert WitnessesĪn expert witness offers opinions based on the expert’s specialized knowledge, training, or experience rather than the expert’s own perception of facts. “He seemed angry,” an opinion based on attitude and tone of voice, is an example of a lay opinion that some courts regard as admissible if the person’s anger is relevant to the case. An exception to that rule allows lay witnesses to give rational opinions based on common experience if the opinion would help the jury understand the evidence. Since fact witnesses are typically testifying about things that they perceived, fact witnesses do not usually give opinions. A chemist or an economist who testifies about a car crossing a centerline and causing a collision does not become an expert witness simply because she has an advanced degree.Ī jury needs no specialized knowledge to understand the testimony of a fact witness. Whether the witness has specialized knowledge does not affect his or her status as a fact witness. “I saw the blue car cross the centerline and collide with the red car” is fact testimony.įact testimony is usually given by lay witnesses, but witnesses who have expertise that does not inform their testimony can also give fact testimony. Fact witnesses testify about things they perceived. Fact WitnessesĬourts generally agree that a fact witness is someone who bases testimony on observation and personal knowledge. The procedural rules that govern disclosure and expert reports depend on classifying the witness correctly. In both state and federal courts, the distinction between a fact witness and an expert witness is not always clear. State courts sometimes refer to a non-retained expert as a hybrid witness. Federal courts draw a distinction between retained and non-retained experts. Placing an expert witness into the correct category can make the difference between a lawyer’s ability to use an expert at trial and a judge’s decision to exclude the expert’s testimony.ĭiffering terminology used by state and federal courts contributes to the confusion. Courts and rule-makers have categorized expert witnesses in ways that can be confusing. ![]()
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