Another Example of a Court Ignoring the 2000 Amendments to the Federal Rules of Evidence:

I've blogged before about various federal courts ignoring the language of the 2000 amendments to Federal Rule of Evidence 702, dealing with expert testimony, and instead relying on pre-2000 circuit precedents that conflict with that language.

I just came across an example of the same phenomenon with regard to Rule 701, dealing with lay opinion testimony. Rule 701 was also amended in 2000, to clarify that there is no overlap between lay opinion and expert opinion testimony; for testimony to be within the scope of Rule 701, it must be "rationally based on the perception of the witness" and "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." This was meant to close a loophole in which some courts were allowing parties to avoid the strictures of Rule 702 by deeming opinion testimony based on specialized knowledge to be lay testimony subject to the more lenient guidelines of Rule 701.

Yet last year, the Third Circuit wrote in Eichorn v. AT&T Corp., 484 F.3d 644, "Although this court has recognized that lay opinion as to technical matters may sometimes be appropriate, Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1200-01 (3d Cir.1995), we have cautioned that 'Rule 701 requires that a lay opinion witness have a reasonable basis grounded either in experience or specialized knowledge for arriving at the opinion that he or she expresses.'.. .Id."

It should be obvious from the language of Rule 701 that opinions on technical matters grounded in specialized knowledge are now considered expert and not lay testimony, and that this language from Asplundh is no longer good law. (Fortunately, it didn't make a difference to the outcome of this particular case.) Yet it seems that with regard to Rule 701, like Rule 702, judges are relying on prior precedents without noting that those precedents have been rendered moot by the 2000 amendments. It's tempting to lay the blame on the judges' clerks who draft the opinions, but the buck stops with the ladies and gentlemen who wear the black robes.

For other dubious applications of Rule 701, see United States v. Maher (1st Cir. 2006) (approving under Rule 701 testimony by a police officer based on his training and experience that a post-it note found in the defendant's van contained a list of customers' orders; was a "[d]rug distributors' way of being organized"; and that the number four written next to an individual's name referred to "[f]our ounces of cocaine.") [besides the 701 issue, the post-it note testimony is absurd on its face]; Brown v. Ryan's Family Steak Houses, Inc., 113 Fed. Appx. 512, 2004 WL 2423688 (4th Cir. 2004) (allowing a physician to testify as a lay witness under Rule 701 that his patient lacked the requisite mental capacity to enter into a binding contract due to brain atrophy and subclavian steal syndrome); United States v. Henderson, 409 F.3d 1294, 1300 (11th Cir. 2005), (suggesting that a physician's diagnosis of a hairline fracture of the jaw would be "permissible lay testimony"); Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213 (11th Cir. 2003) (permitting the introduction as lay opinion testimony offered by a ship repairer's employees as to whether charges were fair and reasonable or in line with similar services provided by similar operations). Other examples from readers are welcome.

Interesting, but are you sure?

1. The 2000 notes to the amendments to FRE 701 cite the Third Circuit's 1995 Asplundh case as the sort of thing they're intending to codify:

Rule 701 has been amended to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing. Under the amendment, a witness' testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702. See generally Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190 (3d Cir. 1995).

2. Also, in Eichorn, the CA3 appears to have affirmed the district court's decision to exclude the contested testimony on the ground that the witness wasn't qualified to give it. Perhaps the quote that you emphasize is a misstatement of Rule 701 in its current form, but the case itself does not appear to be a misapplication of the rule. The other cases you cite, however, appear to have allowed the challenged testimony (with the exception of Henderson)
5.21.2008 11:30pm
Tony Tutins (mail):
In that case, "What does a layman know?" would make a good law review article. Laymen can give opinions rationally based on their experience, correct? If I can say "He was drunk" or "She looked tired" can I say "The car was going 30-40 mph"?
5.21.2008 11:34pm
DavidBernstein (mail):

(1) The see generally is obscure: is it citing Asplundh as an example of the problem, an example of the proper solution, or as an example of a case where the court subjected the testimony to searching scrutiny regardless of what rule was applied?

(2) I noted that the court's statement didn't make a difference in the outcome, and it's because the testimony was excluded anyway. But it's still jarring to read an opinion that says precisely the opposite of the plain meaning of the FRE.
5.21.2008 11:38pm
Interesting points. I agree that "see generally" is obscure. My guess is that the drafters of the notes meant to cite Asplundh as a case in which the court subjected the challenged testimony to searching scrutiny regardless of which rule was applied.

Eichorn seems to have done the same thing. At the beginning of the paragraph containing the statement you note is where I think the "holding" on that topic lies: "In excluding Mr. Crowley's evidence, the District Court was within the broad discretion afforded it under Federal Rules of Evidence 701 and 702 to act as a gatekeeper charged with preventing unreliable opinion testimony." I agree, though, that the Eichorn panel should probably not have quoted the statement in Asplundh as a statement of current law on lay opinion, and to that extent appears to have missed the amendments.
5.21.2008 11:51pm
NickM (mail) (www):
Tony - I would say yes, if it is based on watching the car move past you. Here's why.
Something moving at 10 mph will move approx. 15 feet (close to a car length) in a second, so if it is traveling at 30-40 mph, we're talking about 3-4 car lengths in a second (or conversely, 1 car length in 1/4 to 1/3 of a second). Seeing and recognizing this sort of movement is within the observational power of the average person.

5.21.2008 11:55pm
Jonathan F.:
I hardly think you can criticize the Eichhorn court for relying on "pre-2000 circuit precedents that conflict with" the new Rule 701 when the case cited was Asplundh Manufacturing. In fact, the 2000 Advisory Committee's Notes to Rule 701 themselves twice cite Asplundh Manufacturing with approval, including once with a "see generally."

At any rate, your analysis plays a little loose with the language of Eichhorn. You rebut the case by saying that "opinions on technical matters grounded in specialized knowledge are now considered expert and not lay testimony." But Eichhorn never referred to technical matters. And it is not at all clear that any opinion relying on "experience or specialized knowledge" is ipso facto an expert opinion. As the Note to the new 701 explains:
[M]ost courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. Such opinion testimony is admitted not because of experience, training, or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis.
(citation omitted). The point is not that all "experience, training, or specialized knowledge" is "within the realm of an expert," only that this kind of business testimony does not require the kind of experience, training, or specialized knowledge is an expert's province. The opinion still requires what the Committee called "particularized knowledge" for such testimony to be admissible under 701, though -- and if there is any difference at all between "specialized knowledge" and "particularized knowledge" it is sufficiently opaque that I do not think it is fair to criticize a court for referring to the latter instead of the former in conducting a 701 analysis.
5.22.2008 12:01am
Jonathan F.:
Ah, that comment took me a while to write. I see others have mentioned some of the same points.
5.22.2008 12:02am
DavidBernstein (mail):
FWIW, I've argued in the New Wigmore: Expert Evidence that under new Rule 701, "opinion testimony should only be considered lay and not expert opinion if the average person, having been in the same position as the witness could provide that testimony... Application of of specialized knowledge from whatever source would bring the testimony within the sphere of expertise." I think projected profits of a business falls within that category, so long as one doesn't need the skills/specialized knowledge of an accountant, appraiser, etc. to make the projection.

Also, FWIW, I'm not a big fan of relying on "legislative history", including the ACN, to intepret statutes, including the FRE; though it can provide some marginal help, if the plain meaning is contrary to the intent as expressed in the notes, the plain meaning wins. I'm not saying that this is the case with regard to 701, but I thought I'd set the principle out anyway.
5.22.2008 12:19am
DavidBernstein (mail):
Alias, I think we are in accord.
5.22.2008 12:20am
Peter B. Nordberg (mail) (www):
One reason courts still resort to the notion of "lay expertise" might be that for some garden-variety witnesses, judges may want to avoid all the High Procedural Ceremony now attendant to designating a witness as an expert -- compendious Daubert motions, full-blown Rule 26 reports, etc.

Even now, for example, eight years after the 2000 amendments, you still find the occasional district court decision admitting the testimony of a treating physician as lay opinion. I doubt that's because the judges can't grasp amended Rule 701. I imagine it's more because they don't want to burden a treating doc (or the parties, or themselves) with extensive admissibility proceedings if the doc is only going to testify to an elevated blood pressure or a broken femur.

Yes, Kumho Tire does afford latitude to scale back the procedural observances for some types of routine expert testimony whose generic reliability is not in serious controversy. But the rules and the cases aren't very clear on just how far that scaling back can go, and often the objecting party is insisting loudly to the court (not without quotable language from the appellate decisions) that Rule 702 mandates extremely searching scrutiny of all expert opinion without exception. It might naturally seem to a beleaguered trial judge that the more practicable and expedient course is to shunt the testimony to the lay end of the "no overlap" divide.

I'll confess to some uncertainty about what the rules should be in this area. But I do think that despite the superficial conceptual purity of the "no overlap" model, it sometimes isn't very accommodating to practical testimonial realities.
5.22.2008 12:39am
Cornellian (mail):
I think "see, e.g." rather than "see generally" would have been a better way to indicate that Asplundh was intended as an example of the problem to be fixed by FRE 702.
5.22.2008 1:07am
C Miller (mail) (www):
I've noticed the same problem with several recent cases. For instance, in United States v. Perez-Lopez, 2008 WL 185507 (11th Cir. 2008), the Eleventh Circuit found that the district court properly allowed a DEA agent to describe the defendant's behavior in driving his Expedition as a "heat run," despite the agent not being qualified as an expert witness. The Eleventh Circuit found that the district court did not abuse its discretion in admitting the agent's testimony pursuant to Federal Rule of Evidence 701 "because his opinion that the vehicle he observed was conducting a 'heat run' or 'checking to see if it was being followed,' was based on his personal observations of the vehicle and his past experience as a DEA agent.'" As I noted in a blog post about the case, the problem is that the Eleventh Circuit also had to find under part (c) that his testimony "was not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."
5.22.2008 7:25am
Peter B. Nordberg (mail) (www):

Your example reminds me that the problem arises especially in criminal cases when prosecutors want to avoid Rule 16 disclosures. The trial court admits the testimony anyway and it's left to the appellate courts to undo the damage. If the appellate court doesn't want a new trial, it basically has two options: bending the lay opinion rules, or "harmless error." The number of opinions adopting the first option might dwindle if prosecutors more regularly listed their law enforcement experts as such under Rule 16.
5.23.2008 2:27pm