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December 06, 2016 Practice Points

Navigating Admissibility and Disclosure Requirements for Lay and Expert Opinion Testimony

The interplay hinges on the basis for proposed opinion testimony rather than résumé of the witness.

By Pepper Allgood

The interplay between the admissibility standards of Fed. R. Evid. 701 and 702, and the disclosure requirements of Fed. R. Civ. P. 26(a)(2), hinges on the basis for proposed opinion testimony rather than résuméof the witness. The basis of the testimony determines both the admissibility standards and the disclosure requirements that apply. The same witness may provide some opinions admissible under Rule 701, and others that must satisfy Rule 702. If the witness provides any testimony covered by Rule 702, the expert disclosure requirements apply.

Rule 702 imposes special admissibility requirements for expert opinion testimony: the proponent must prove that a proffered opinion meets that rule's reliability standards. Rule 26(a)(2) imposes disclosure requirements for expert witnesses: the proponent must disclose in advance of trial the identity of any such witness and at least a summary of his or her proposed testimony; from retained experts, the proponent must obtain and provide a full blown expert report.

Rule 701 lets a proponent of opinion testimony avoid the Rule 702 admissibility requirements if the witness bases the opinion on his or her own perception, without relying on specialized knowledge. Moreover, if the witness will not provide any opinions that depend upon specialized knowledge under Rule 702, the proponent need not provide the Rule 26(a)(2) disclosures.

United States v. An Easement and Right-of-way over 6.09 Acres of Land, 140 F. Supp. 3d 1218 (N.D.Ala. 2015) illustrates these principles. There the United States sought to condemn an easement for electric transmission lines across land owned by two companies. The government moved to exclude opinion testimony on land value from two principals in the defendant companies. The government claimed that the defendants failed to comply with the disclosure requirements of Rule 26(a)(2)(C), and that the testimony failed the reliability standards of Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d (1993). The defendants claimed exemption from Daubert and the Rule 26 disclosure requirements because of caselaw that lets owners give opinions on the value of their own property without qualifying as experts.

The government attacked the reliability of the proposed testimony, arguing that Rule 702 and Daubert apply to opinions on land value, just as they apply to other opinions based on "specialized knowledge." The government also argued that, although the proponents of testimony from non-retained experts need not provide full-blown expert reports, Rule 26(a)(2)(C) does require an adequate summary of the facts and opinions to which such an expert will testify.

The court said that it could admit landowner opinions on value under Rule 701 without Daubert scrutiny if the witnesses based their opinions strictly on their own observations. And, to the extent the landowners' opinions were lay opinions under Rule 701, the disclosure requirement in Rule 26(a)(2)(C) did not apply.

On the other hand, the court said that Rule 701 applies to testimony, not witnesses. Within the testimony of a single witness, one opinion may fall under Rule 701 and another under Rule 702. Testimony may not come in under Rule 701, even from a landowner, if the basis of the testimony is the witness' specialized knowledge. Reliance on specialized knowledge makes the witness an expert for purposes of that testimony, and requires that those opinions pass muster under Rule 702. Moreover, as to that testimony, the proponent must make the Rule 26(a)(2) disclosures.

The landowners based some of their opinions on their experience as developers, their familiarity with real estate markets in the area, and their familiarity with the process through which developments are designed, marketed, and sold. Because these opinions depended on specialized knowledge, the court analyzed their admissibility under Rule 702 and also required Rule 26(a)(2)(C) disclosures.

Pepper Allgood is a partner at Jones Walker in Baton Rouge, Louisiana.

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