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4. The best ground for objecting to this question would be that
The plaintiff calls an orthopedist who had never examined the plaintiff and poses to the physician a hypothetical question as to the cause of the disability that omits any reference to the horseback riding accident. The question was not provided to opposing counsel before trial.
A plaintiff sued a defendant for damages for back injuries received in a car wreck. The defendant disputed the damages and sought to prove that the plaintiff's disability, if any, resulted from a childhood horseback riding accident. The plaintiff admitted to the childhood accident but contended it had no lasting effect.
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As to the factual basis, the expert's opinion may be based upon one or more of three possible sources of information: (i) facts that the expert knows from his own observation; (ii) facts presented in evidence at the trial and submitted to the expert, usually through a hypothetical question; or (iii) facts not in evidence that were supplied to the expert out of court, and which are the type reasonably relied upon by experts in the particular field in forming opinions on the subject. Fed. R. Evid. 705. When a hypothetical question is posed to an expert, it may be based on the same types of facts mentioned above.
B is correct. When parties pose hypothetical questions to experts, those questions are typically based on facts presented in evidence at trial. A hypothetical question that does not include all clearly significant facts at issue in a case, which are necessary to reliably answering the hypothetical, would, therefore, be irrelevant. Here, the plaintiff admitted that the horseback riding incident occurred but then failed to reference it when asking the orthopedist the hypothetical question regarding the source of the injury. This means any response by the orthopedist would be based on incomplete information and therefore irrelevant to a determination of the cause of the injury.
A is incorrect. There is no requirement that an expert has firsthand knowledge in order to answer a hypothetical question. The orthopedist may properly base his opinion on hypothetical information, adequately supported by facts, even though he has no firsthand knowledge of the plaintiff's condition. However, this hypothetical did not include all significant facts, and any answer would, therefore, be irrelevant.
C is incorrect. This is a misstatement of the law. Under the Rules, hypothetical questions are still permitted as long as they are based on the relevant facts or data in the particular case.
D is incorrect. There is no notice requirement that hypothetical questions be provided to opposing counsel before trial. The best ground for objecting to the plaintiff's hypothetical question is that it omitted a clearly significant fact in asking for the opinion.