Mark I. Wallach | McCarthy Lebit Crystal Liffman
Expert testimony has become a staple of trial testimony, both on substantive issues of liability and especially on damages calculations. Trial lawyers often rely on experts to explain technical issues to judges and juries, as well as to establish industry practices and standards. Ohio Rule of Evidence 702 sets out the requirements for permitting expert witnesses to offer opinion testimony, a privilege generally denied to lay witnesses.
The Uncertainty Surrounding Expert Opinions in Summary Judgment
Do expert opinions – often included in the reports exchanged between counsel before trial, play a meaningful role in supporting or challenging motions for summary judgment? The relationship between Rule 56, which governs summary judgment, and expert testimony is unclear under current Ohio law, leading to inconsistent rulings and uncertainty.
What Evidence Can Courts Consider Under Rule 56?
Rule 56(C) of the Ohio Rules of Civil Procedure describes what types of evidence the courts may consider when deciding motions for summary judgment. The fundamental question in these motions is whether “it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.” (emphasis supplied). In simpler terms, does the evidence make it clear that there is no genuine dispute of material fact, leaving only one possible outcome?
That evidence is stated to include “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact.” Where do expert reports fit into this list? Attorneys often try to insert expert reports into summary judgment consideration by attaching them to affidavits in which the expert certifies that the report accurately reflects their opinion on the issue at hand. However, Rule 56 (C) does not mention opinions as valid evidence for summary judgment. So, how should courts handle expert opinions submitted in this way? As the 9th Circuit noted in United States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir. 1981), “we have difficulty with the notion that to state an opinion is to set forth specific facts.”
Conflicting Expert Opinions: Do They Preclude Summary Judgment?
In some cases, an expert opinion is literally part of the cause of action being asserted. For example, in a medical malpractice suit, an opinion by a physician that the defendant’s conduct did not meet the standard of care in the profession may be required to state a claim. However, that is not the situation in most civil litigation.
The acute problem posed by this situation is how much weight, if any, a court must give to an expert’s opinion when the expert has not been cross-examined by opposing counsel and the court is forbidden to weigh the evidence on cross-examination. In other words, summary judgment is supposed to be limited to cases where “there is no genuine issue as to any material fact.” So, are expert opinions to be treated as “facts” for this purpose? If so, does a conflict of expert opinions preclude a grant of summary judgment for either party? If that is the case, then any party can defeat any motion for summary judgment by hiring an expert and submitting the expert’s report in opposition to any position taken by the movant.
For example, in Miller v. Bike Ath. Co., 80 Ohio St. 3d 607, 617 (1998), the Ohio Supreme Court reversed a summary judgment ruling, stating that “[s]ince these opinions are in direct conflict with those opinions expressed by appellees’ experts, there remain genuine issues of material fact on the liability issues presented.”
It seems unlikely that the drafters of Rule 56 intended that outcome. If expert opinions attached to verifying affidavits are not to be treated as “facts,” then how should they be treated in summary judgment proceedings? More importantly, should they be considered at all?
Can Courts Weigh Expert Testimony Without Cross-Examination?
In trial situations, courts can fully evaluate expert testimony, including cross-examinations that challenge the expert’s qualifications, methodology, or conclusions. However, under Rule 56, courts are forbidden to weigh testimony. See, on this point, DiBiasi v. First Seventh-Day Adventist Cmty. Church, 2014-Ohio-2702, ¶ 32 (11th District). Without observing the expert’s demeanor, assessing their credibility, or allowing cross-examination, how can a court determine the weight of an expert’s report in a summary judgment decision?
A Possible Solution: Limit the Role of Expert Reports in Summary Judgment
There does not appear to be any way out of this conundrum. The most sensible solution would be for courts to refuse to consider any expert opinion testimony on motions for summary judgment. Otherwise, Rule 56 risks becoming ineffective. Courts should examine the material facts to see if any are in conflict. If they are not, judgment should be rendered according to the law, regardless of the opinions of expert witnesses.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.