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April 16, 2015 Practice Points

Expert Witness Bootstrapping

No longer can an expert testify about the findings of a non-testifying expert.

By Marc B. Sherman

No more expert witness bootstrapping allowed! On March 25, 2015, a New Jersey court decided that testifying experts cannot testify (in New Jersey anyway), on either direct or cross-examination, about the findings of a non-testifying expert in the case to bolster the testifying expert's opinion or credibility. In this particular case, William James v Rosalind Ruiz, Superior Court of New Jersey Appellate Division, Docket No. A-3543-13T2, the New Jersey appellate court distinguishes between an expert basing his or her opinion on otherwise inadmissible hearsay evidence vs. testifying directly to that evidence under the guise of Rule 703.

The court found that lawyers too often use experts to testify at trial about opinions held by other experts who are not called to testify themselves. In James v. Ruiz, the appellate court prohibited lawyers from asking an expert witness whether that expert's findings are consistent with those of a non-testifying expert, "where the manifest purpose of those questions is to have the jury consider for their truth the absent expert's hearsay opinions about complex and disputed matters." The court found that lawyers are using the approach to take advantage of expert witnesses' knowledge of opinions of other experts who are not present at trial and cannot be examined.

While the recent decision may only impact expert witnesses in New Jersey for now, the "bootstrapping" prohibition is likely to be adopted by other jurisdictions, both state and federal.

Marc B. Sherman is with Alvarez & Marsal in Washington, D.C.

Keywords: expert witnesses, litigation, bootstrapping, New Jersey, hearsay opinions, non-testifying expert

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