Dan Berexa's Tennessee Law Blog

Experts Cannot Testify What the Law Is - The Judge is the "Expert" on the Law

Should an expert be permitted to testify regarding his or her interpretation of a law or offer legal conclusions? 

The answer is no. A recent ruling on this issue is Ward v. City of Lebanon, No. M2006-02520-COA-R3-CV, a decision from the Tennessee Court of Appeals. In Ward, the plaintiffs's expert's trial testimony included an interpretation of a statute relating to Tennessee's One-Call system, which requires notice prior to excavation so that gas, electrical and other underground utilities can be identified and marked. The plaintiff was injured when he excavated near a gas line. Remanding the case for a new trial the court held:

"[W]e agree with the defendants that he [the expert] should not have been allowed to testify regarding his interpretation of the One-Call statute, especially where such was in direct contradiction to the statute’s language. By testifying that it would have been prudent for Ward to call the One-Call system, but that he was not required to do so, Sissom [the expert] basically reached an impermissible legal conclusion. See, Dempsey v. Correct Mfg. Corp., 755 S.W.2d 798 (Tenn. Ct. App. 1988). We hold that Sissom should not have been allowed to give his interpretation of the One-Call statute, ... ."

Remember that Tennessee Rule of Evidence 704  does allow experts to testify as to the so-calle issue" to be decided by the trier of fact.  However, the  rule does not permit opinions that "embody legal conclusions as to ultimate issues" as such would "invade the province of the court and/or jury."  Gibson v. Chrysler Corporation, 2004 WL 1918725 (Aug. 26, 2004).  In Gibson, the Court of Appeals held that trial court properly excluded testimony of the plaintiff’s expert, a former NHTSA lawyer, regarding alleged violations of regulations by automobile manufacturer. As stated by the Tennessee Court of Appeals in Dempsey v. Correct Manufacturing Corporation, 755 S.W.2d 798, 806 (Tenn. Ct. App. 1988), the "content meaning and application of statutes and regulations are not a matter of fact to be proven by the affidavit ofd "ultimate an expert witness . . . but are a matter of law to be presented by brief and argument of counsel supported by citations and authorities."

Dan Berexa
Nashville, Tennessee

Is the Test to Spot those Faking Personal Injuries a Fake?

A recent Wall Street Journal Article reported on the Fake Bad Scale, which was added to the Minnesota Multiphasic Personality Inventory (MMPI) last year. Defense experts are now using the test in personal injury cases to identify malingerers. Critics contend that the test is junk science and can be used to argue that almost anyone is a malingerer. However, expert testimony using the Fake Bad Scale has been permitted in both Frye and Daubert jurisdictions. The MMPI has posted a response to the WSJ article.  The WSJ article is also discussed in the ABA On-Line Journal  Click Here and the Wall Street Journal's LawBlog.