This seminar focuses entirely on Article Seven of the Rules of Evidence: The Opinions of Lay and Expert Witnesses. The seminar has been approved for 6.5 hours of CLE credit in both Nebraska and Iowa.
Registration: Attorneys wishing to attend and receive CLE credit may register online via:
Fee: $150 if received by December 5, 2016. Registration after December 5, 2016 is $180.
7:45-8:00 Registration and Check-in
8:00-8:20 Rules 701: Lay Opinions in both State and Federal Courts
First question: The admissibility and inadmissibility of lay opinions:
- When are lay opinions admissible?
- 104(b) standard of admissibility: helpful, based on 1st hand knowledge
- Compare, State v. Jacobs, 242 Neb. 176 (1993) to State v. Smith, 286 Neb. 856 (2013)
- The meaning of code words or slang used in drug trafficking. State v. Russell, 292 Neb. 501 (2016).
- The demeanor of a person as “nervous,” “sad,” “happy,” or “giving up” U.S. v. Gyamfi, 805 F.3d 668 (6th Cir. 2015).
- Industry standards: Harmon Cable v. Scope Cable, 237 Neb. 871 (1991)
- Authorship of handwriting: In re Estate of Vilwok, 226 Neb. 693 (1987)
- A treating physician as a lay witness:
- Treating physician: May testify as a lay witness regarding facts observed: If the treating physician will testify to opinions, notice must be given:
- Identifying marijuana: State v. Campbell, 260 Neb. 1021 (2001)
- Whether someone is intoxicated: State v. Falcon, 260 Neb. 119 (2000); State v. Howard, 253 Neb. 523 (1997)
- What a canine alert suggests: State v. Howard, 282 Neb. 352 (2011)
- Family opinions with respect to the issue of “best interest” of the child: Boamah-Wiafe v. Rahsleigh, 9 Neb. App. 503 (2000)
- Lay opinions are inadmissible if they are not “helpful”):
- “He could have avoided the accident: Jershin v. Becker, 217 Neb. 645 (1984)
- If the opinion requires expert testimony: U.S. v. Figueroa-Lopez, 125 F.3d 1241 (9th Cir. 1997)
- “He’s lying”inadmissible : State v. Beerman, 231 Neb. 380 (1989); U.S. v. Wallace, 461 F.3d 15 (2006) ; State v. Archie, 273 Neb. 612 (2007); Unless opponent opens the door (questioning basis): State v. Gray, 2015 UT App 106 (Invited error)
8:20-8:40 Rule 702: The Prima Facie Case Expert
Second question: When do you need an expert as part of prima facie case?
- Expert testimony required for professional malpractice:
- Legal standard of care: Guinn v. Murray, 286 Neb. 584 (2013); Govier & Milone, 286 Neb. 224 (2013)
- Medical standard of care: Yoder v. Cotton, 276 Neb. 954 (2008)
- Dental standard of care: Capps v. Manhart, 236 Neb. 16 (1990)
- Experts sometimes required by statutory requirements:
- Best interest and Indian Child Welfare Guidelines: In re Zylenam, 284 Neb. 384 (2012)(certified clinical psychologist qualified despite lack of “tribal” experience)
- Workmen Compensation: causal connection between employment and disability: Potter v. McCulla, 288 Neb. 741 (2014)
- Common Knowledge need not Require Expert Testimony:
- Objecting to Expert Testimony/Invited Error in Excluding:
- Specialized Knowledge Requires Expert Testimony in many Areas:
- Issue-by-Issue, element-by-element ques.: White v. Jeppson, 2014 UT App 90 (2014)
- Expert Testimony Impermissible on certain subjects:
- Interpreting a statute: State v. Merchant, 285 Neb. 456 (2013)
- Ultimate issue may not be helpful: (See contra 704)
- Credibility of witness’s testimony State v. Smith, 241 Neb. 311 (1992)
- Unreliability of Eye Witness may or may not be helpful:
- Compare, U.S. v. Langan, 263 F.3d 613 (6th Cir. 2001)
- With State v. Clopten, 2009 UT 84 (Factors relevant to the unreliability of eye witness testimony)
8:40-9:00 Rule 702: The Consequences of Expert Deficiencies
Third question: What are the consequences of deficient expert testimony?
- Expert malpractice claims: Ellison v. Campbell, 2014 OK 15
9:00-9:10 Rule 702: The Consulting or Nontestifying Expert
Fourth question: What are the rules related to nontestifying (consulting) experts?
- F.R.C.P. 26(b)(4)(D) The Non-Testifying Expert
- Upjohn Co. v. U.S., 449 U.S. 83 (1981) (mental impressions protected)
- Ager, 622 F.2d 496 (10th Cir. 1980): protect even identity
- Wright and Miller 2d 2032: Work product protection of identity
26(b)(4)(B) a party can discover “facts known or opinions held” by a nontestifying expert only upon a showing of “showing of exceptional circumstances.”
9:10-9:30 Rule 702: Procedural Issues that Arise with Experts
Fifth question: what are the procedural differences for expert testimony?
- Disclosing Experts
- The Mandatory Expert Report (and Treating Physicians):
- The Daubert Motion in Limine
- Motion for Summary Judgment when Necessary Expert Testimony Unavailable
- Trial Objection (and Voir Dire)
- Motion for Judgment as a Matter of Law
- Renewed Motion for Judgment as a Matter of Law
- Daubert Appeal: Weisgram v Marley Co., 528 U.S. 440 (2000)
9:30-9:40 Rule 702: The Daubert/Rimmasch Objection and Response
Sixth Question: What are the 702 Burdens:
State v. Casillas, 279 Neb. 820 (2010)
- 1st Step: The Opponent’s Triggering Objection
- 2nd Step: The Proponent’s 104(a) Burden
- 3rd Step: The Opponent’s Challenge to the 104(a) Standard of Reliability
- Judge is a gatekeeper (not goal tender): King v. Burlington, 277 Neb. 203 (2009)
- Bench trial permits more flexibility in hearing expert testimony: State v. Braesch, 292 Neb. 930 (2016)
- Both sides should have opportunity to challenge or support: Proctor and Gamble v. Haugen, 427 F.3d 727 (10th Cir. 2005).
- Judge cannot abdicate: Perry Lumber v. Durable Serv., 271 Neb. 303 (2006)
- Judge must make a record to get abuse of discretion review: Zimmerman v Powell, 268 Neb. 422 (2004)
Seventh Question: How to (and not to) Object to Expert Testimony:
- Not “Lack of Foundation”: Ford v. Estate of Clinton, 265 Neb. 285 (2003)
- Object with 702 specificity: competency, theory, methodology, application
Eighth Question: How Important is Objecting Early, Often, & Late to Expert Testimony
- Weisgram v Marley Co., 528 U.S. 440 (2000)
9:40:-10:00 Rule 702: The Criteria and Context for the Daubert Objection
Ninth Question: What is the content of the Daubert Questions?
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)
Tenth Question: Does Daubert always apply to factual disputes?
- Entm’t Prods., Inc. v. Shelby Cnty, Tenn, 721 F.3d 729 (6th Cir 2013)(Daubert does not apply to judicial notice of legislative facts)
- In re Rebecca P., 266 Neb. 869 (2003)(Daubert does not apply to termination proceedings)
- Veatch v. American Tool, 267 Neb. 711 (2004)(Daubert does not apply to workmen compensation hearings)
10:00-10:15 Daubert and the Supreme Court
Eleventh Question: What are the Significant SCOTUS Cases on Expert Testimony?
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)(the standard)
- G.E. V. Joiner, 522 U.S. 136 (1997) (abuse of discretion standard)
- Kumho Tire v. Carmichel, 526 U.S. 137 (1999)(the experiential expert)
- Weisgram v Marley Co., 528 U.S. 440 (2000)(Post-trial Rule 50 Motion)
- Melendez-Diaz v. Mass., 557 U.S. 305 (2009)(Experts and Confrontation)
- Bullcoming v. N.M., 131 S.Ct. 2705 (2011)(Experts and Confrontation)
- Williams v. Illinois, 132 S.Ct. 2221 (2012)(Confrontation and Rule 703)
- Cavosos v. Smith, 132 S.Ct. 1077 (2012)(Daubert the finality of the jury)
10:15-10:30 Morning Break
10:30-10:45 Daubert and the Nebraska Supreme Court
Twelfth Question: What are the Significant Nebraska Supreme Court Cases?
- Schafersman v. Agland, 262 Neb. 215 (2001)(adopting Daubert/Kumho)
- Epp v. Lauby, 271 Neb. 640 (2006)(fibromyalgia and differential etiology)
- Carlson v. Okerstrom, 267 Neb. 397 (2004):(Differential diagnosis toss up)
- Heistand v. Heistand, 267 Neb. 300 (2004)(Daubert and family law)
- King v. Burlington Northern, 277 Neb. 203 (2009)(Toxic torts and probability)
- Perry Lumber v. Durable Serv., 271 Neb. 303 (2006)(Industrial standard; experts may critique basis of opposing expert’s opinion)
10:45-11:00 A Template for Direct Examination for Experts
Thirteenth Question: Is there a Rule-based Template for Direct Examination of an Expert?
11:00-11:20 Rule 703: The Proper (and Improper) Bases for Expert Testimony
Fourteenth Question: What are the Acceptable Bases of an Expert’s Opinion?
- Use of Statutory Provisions to Establish Reliable Theory/Methodology
- Use of Judicial Notice to Establish Reliable Theory/Methodology
- Use of Learned Treatise 803(18) to Establish Theory/Methodology
- Use of 803(17) (industry standards): Thone v. Regional West Medical Center, 275 Neb. 238 (2008).
- Use of Expert Testimony to Establish Theory/Methodology
- Use of learned treatises to establish the methodology of handwriting identification. State v. Oliveira-Countinho, 291 Neb. 294 (2016)
- Use of a Hypothetical Question in Expert Testimony
- Extrapolating from Theory/methodology to the Facts of the Case
- Rule 703, Expert Testimony and the Right of Confrontation:
- Reconciling Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Williams v. Illinois, 132 S.CT. 2221 (2012)
11:20 to 11:40 Rule 704: The So-Called Ultimate Issue Rule and Expert Testimony
Fifteenth Question: What is the Ultimate Opinion Rule and How Does it Work?
- Rule 704(a) The Ultimate Opinion Rule
- Inadmissible expert opinions stated in terms of the jury instruction
- Admissible statements related to the industry standard: State v. Larsen
- Rule 704(b) The Special Limitations for Opinions on Mens Rea in a Criminal Case
- U.S. v. West, 962 F.2d 1243, 1245 (7th Cir. 1992) (Schizoaffective disorder, not he understood right/wrong)
- State v. Braesch, 292 Neb. 930 (2016)(Inadmissibility of expert testimony on volitional intent in a criminal case)
- Voluntary Intoxication: no longer a defense to a specific intent crime: 20-122
11:40-12:00 Rule 705: Discovery and Ordering the Direct Testimony
Sixteenth Question: What are the Discovery Implications for Experts?
- The Rules of Discovery and Experts
- Maresh v. State, 241 Neb. 496 (1992)/Neb. R. Stat. 25-1273.01
- Experts must be disclosed as an expert under 26(a)(3)(A) if they are to testify as an expert
- Expert Reports & Treating Physicians: Simon v. Drake, 285 Neb. 784 (2013)
- Criminal discovery: 29-1912(1)(e) discovery of expert reports extends only to written reports. State v. Parnell, 294 Neb. 551 (2016).
- Discovery deposition of a child victim and obligations of confidentiality: State v. Armstrong, 290 Neb. 991 (2016).
- Incomplete opinions: Rembrandt Vision Technologies v. Johnson & Johnson, 725 F.3d 1377 (2013)
- Sanctions for Discovery Violations: Norquay v. U.P., 225 Neb. 527 (1987)
- Failing to Designate an Expert:
- The Rules of Privilege and Work Product and Experts
- Confidential Information and Expert Reports
11:50-12:00 Rule 706 Court Appointed Experts
Seventeenth Question: When Should You (Can You) Use Court-Appointed Experts?
- Court-Appointed Expert Testimony not Binding on the Court:
12:00-1:00 Lunch on your own
1:00-1:30 Examples of Cutting Edge Issues of Daubert
Eighteenth Question: What are Some Examples of Different Level Daubert Challenges?
- Challenges to Qualification or Scope of Qualifications of an Expert: .
- Challenges to Theory: Products Liability: A Seatbelt Case as Illustrative: Dale v. G.M., 109 F.Supp.2d 1376 (D. Ga. 1999)
- Challenges to Theory: A Shaken Baby Cases: Cavosos v. Smith, (U.S. 2012);
- Challenges to Methodology: Fingerprint Testimony: the ACE-V Method: State v. Sheehan, 2012 UT App 62
- Challenges to Methodology: Patent royalty: Micro Chemical, Inc. v. Lextron, Inc., 317 F.3d 1387 (Fed. Cir. 2003)
- Challenges to Method.: Highway Engineering: Paget v. UDOT, 2013 UT App 161
- Challenges to Methodology: “`historical cell site analysis’ for cell phone use: State v. Parnell, 294 Neb. 551 (2016)
- Challenges to Application: E.E.O.C. v. Freeman, 778 F.3d 463 (4th Cir. ’15)
- Challenges and Weight: DNA Evidence: Admissibility/Weight of the Evidence:
1:30-1:45 Examples of Theory and Methodology in a Medical Malpractice Case:
Nineteenth Question: Can you provide Foundation for a Medical Malpractice Case?
- GAMSOC (Generally Accepted Medical Standard of Care)
- SOAP (Subjective, Objective, Assessment and Plan)
- Differential Diagnosis
- Differential Etiology
1:45-2:30 Cross Examination of Experts
Twentieth Question: Can you Provide Suggestions for Preparing for Cross of an Expert?
- A Template of Cross Examination of Experts: Knowing What & How to Attack
- Preparing your Witness for Cross Examination
- Trick Questions, Form of the Question Objections, and Witness Preparation
2:45-3:15 Finding and Evaluating Experts
Twenty-First Question: What are the Available Resources for Finding and Evaluating Expert Witnesses?
3:15-4:00 Evidence Based Medicine and the Art of Identifying and Critiquing Learned Treatises in the Areas of Medicine and Toxicology
Twenty-Second Question: How do you evaluate learned treatises and the Methodology of Evidence-Based Medicine?
What are my parking options for the event?
The Harper Center is located on Creighton University's campus at 602 North 20th street in Omaha, Nebraska. The closest parking to the Harper Center is the surface lot immediately south of the Harper Center. This lot can be accessed via 20th Street. Guests should turn south onto 20th from Burt Street. Additional parking is available on the top deck of the law school parking structure, the Lied Education Center for the Arts Visitors Lot at 23rd and Cass streets, and the top deck of the 24th and California parking structure.
Where can I contact the organizer with any questions?
Contact Tory Van Heuvelen with any questions by phone at (402)-280-1204 or by email at email@example.com
Do I have to bring my printed ticket to the event?
You do not need to print your ticket to attend this event.
What is the refund policy?
Cancellations must be received five days prior to the seminar for a refund.