Tennessee Supreme Court Agrees To Hear Important Case Concerning Expert Witnesses

The Tennessee Supreme Court will hear oral arguments on May 11, 2011 in Holder v. Westgate Resorts, Ltd.,  E2009-01312-SC-R11-C (Tenn. Ct. App. 2010).

Here is the summary of the opinion prepared by the Court of Appeals:

Plaintiff sustained personal injuries resulting from a fall on defendant’s premises

and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant’s expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.

The "third party" referenced in this summary was in fact an another expert.  That’s right – the defense expert wanted to testify that he had talked with another expert who agreed with his view of the issue.  Of course, the second expert wasn’t available for cross-examination.  This case will give the Court its first opinion to rule on the meaning of a language recently added to Rule 703, which provides that "[f]acts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect."
I wrote my column in the Tennessee Bar Journal about this case.  It will be published in May, 2011. I will write a post about the column as soon it is released to the public.
In the meantime, you can get a good view of the issues by reading the majority and minority opinions.