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46. Should the court allow the plaintiff's expert to testify at trial?
At a pretrial hearing to determine the admissibility of the expert's testimony, the expert testified that she based her opinion on several studies provided by the plaintiff's attorney about another substance that is similar to the toxin at issue. These studies show that prolonged exposure to high doses of the similar substance can cause the respiratory disease that the plaintiff suffers from. On cross-examination, the company's attorney elicits from the expert an admission that she did not consider, in forming her opinion, two recent clinical studies, both of which concluded that there was no connection between the toxin at issue and any respiratory disease.
At trial, the plaintiff seeks to call an expert who will testify that in her opinion the toxin released from the factory caused the plaintiff's respiratory disease. The company has objected to the admission of the expert's testimony.
A plaintiff who lives near a factory has sued the company that owns it, alleging that a toxin released from the factory caused the plaintiff to suffer a respiratory disease. The company contends that only a small amount of the toxin was released for a brief period, and that in any event the toxin is not known to cause any respiratory disease. The plaintiff has not disputed the minimal amount and brief length of the exposure.
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A is incorrect. There is no prohibition on an expert's review and reliance on studies that were read for purposes of testifying in the litigation.
C is incorrect. The party that offers expert testimony has the burden to prove the reliability of that testimony by a preponderance of the evidence. Because it was the plaintiff who offered the expert's testimony, the company did not have the burden to prove the testimony was unreliable.
D is incorrect. Under FRE 104(a), the preliminary questions here—the sufficiency of the expert's basis for her opinion and the reliability of the expert's methodology—are for the court to determine by a preponderance of the evidence.