We often talk about the role that experts play in personal injury cases, but experts can not just say anything in court, and when a judge allows or prohibits an expert from testifying as to an issue, or from answering a question, it can cause problems for the side presenting the expert.
Recently, a case ended up being improperly decided simply because a trial judge disallowed an expert from answering what seemed like a simple question. That refusal led to a complicated analysis of what the expert’s testimony actually meant, and how it should be interpreted in front of a jury.
Expert’s Testimony is Not Allowed
The case arose when a victim sued a tobacco company after she contracted a smoking-related disease. Like many suits against tobacco companies, this suit seems to have alleged that the manufacturer marketed a product that they knew to be dangerous and addictive.
The victim’s witnesses included a pulmonologist as an expert. The pulmonologist was asked whether the victim was addicted to nicotine, which would have supported the victim’s position.
The Court ruled that the pulmonologist was not qualified to testify whether the victim or anyone else was addicted. In other words, the Court held that such a statement was outside of the witness’s field of expertise.
However, when questioned by the defendant’s attorney, the pulmonologist was allowed by the court to testify that the victim could quit if she was “sufficiently motivated.”
Mischaracterization in Closing
During closing arguments, the defendant characterized the pulmonologist’s testimony to the jury as meaning that the plaintiff was not addicted to nicotine, but rather simply did not want to quit smoking, and that she could have quit had she really wanted to. The defendant painted a picture of the victim as being irresponsible, as opposed to medically and chemically addicted. If she could have quit had she wanted to, the defense argued, she could not be addicted. This was all based on the defendant’s interpretation of the pulmonologist’s testimony.
The defendant’s attorneys went so far in their closing argument as to say that if the victim’s problems were a runaway train, she could have “put on the brakes” and slowed down.
The victim’s attorneys objected to the closing argument. They argued that the problem with the defendant’s closing argument was that the defendant’s attorneys were effectively and practically arguing that the plaintiff was not addicted, even though the pulmonologist’s testimony as to addiction was excluded.
Problems in Closing Arguments
Closing argument is the time for attorneys to put argument to the facts. While much artistry and embellishment is allowed (as is often displayed in popular movies and film), there are limits to what an attorney can say in closing argument.
An attorney’s argument cannot go beyond the facts and evidence admitted in the trial. That includes mischaracterizing evidence. This often happens when attorneys repeat what witnesses said, or provide creative interpretations to witness testimony, which simply are not correct recitations of what the witnesses actually said.
Exclusion of Pulmonologist’s Testimony Creates Confusion
The victim argued that when the pulmonologist testified that the victim could quit if properly motivated, that did not mean that she was not addicted, as the defendant argued at closing. The court noted the close relationship between the two concepts, and that the will to quit is often intertwined with addiction, and that the inability to muster the willpower to quit can often be because of addiction.
In other words, saying a victim is addicted or lacks will power is not a “one or the other” proposition, as the defendant’s attorneys stated in closing argument.
The court held that the argument was especially problematic because the pulmonologist was prohibited from testifying whether the victim was addicted. Thus, the jury heard that the victim did not have the willpower to quit, but was prohibited from hearing the pulmonologist’s testimony over whether she was addicted.
The appellate court found the defendant’s arguments in closing to be improper. During the trial, the jury never found out if the victim was addicted because the pulmonologist’s testimony to that fact was excluded. If that was excluded, the Court held that the testimony and argument over the victim’s willpower should also have been excluded.
Opening the Door can Create Problems
We often discuss the standard for admitting expert testimony and the qualifications that an expert must have to be called an expert. But this case illustrates an important concept often called “opening the door.” If a witness, expert or not, is allowed to testify to something on behalf of one side, then the witness must be able to do so for the other side, even if the testimony is improper.
For example, if a lawyer asked a lay person to provide testimony as to how nicotine affects the human brain, clearly that would be out of that person’s expertise or personal knowledge. Any objection by the other side would be sustained.
But, if the other side then asks that witness questions about addiction, then the party waives the objection. Even though the testimony would otherwise be improper, a party can not object and exclude testimony from being used by one side, and then use that same testimony for the party’s own benefit.
Personal injury trials can have complex evidence issues. Make sure your attorneys know how to try a personal injury case. Contact Brill & Rinaldi today for a free consultation to discuss filing a lawsuit to recover damages for any injury you may have sustained.