The Advocate, FBA, New Orleans Chapter, Spring Edition, 2021. Used with Permission

http://nofba.org/wp-content/uploads/2021_FBA_Advocate_Spring_web.pdf

Introduction

Just how specialized does an expert have to be to opine on a particular subject area under Federal Rule of Evidence 702?  The answer can be surprisingly different depending on if you are in the Fifth Circuit or the Eleventh Circuit.  Although there is room for argument (and jurisprudential support for argument) in both circuits, it seems—generally speaking—that a higher degree of specialization is required for an expert to be considered qualified in the Eleventh Circuit than is required in the Fifth Circuit.

Federal Rule of Evidence 702 governs the admissibility of expert testimony.  This rule sets forth three requirements: (1) qualification, (2) reliability (assessed under Daubert and its progeny), and (3) helpfulness to the trier of fact.  This article deals with qualification.  The Federal Rules of Evidence state that to be qualified as an expert, a witness must have “knowledge, skill, experience, training, or education” to form an opinion on an issue.  Fed. R. Evid. 702. 

“Qualification” in the Eleventh Circuit

In the Eleventh Circuit, while an expert may be qualified by experience, that does not mean “that experience, standing alone, is a sufficient foundation rendering reliable any conceivable opinion the expert may express.”  United States v. Frazier, 387 F.3d 1244, 1261 (11th Cir. 2004). 

As the Eleventh Circuit has noted—“the Committee Note to the 2000 Amendments of Rule 702 expressly says that, ‘[i]f the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. “The trial court’s gatekeeping function requires more than simply ‘taking the expert’s word for it.’”  Frazier, 387 F.3d at 1261 (citing Fed. R. Evid. 702 advisory committee’s note (2000 amends.) (emphasis added)).  Recent jurisprudence within Alabama district courts has interpreted the qualification requirement narrowly.  For example, in United States v. Ifediba, an Alabama district court explained the distinction between credential-based qualification versus experience-based qualification as follows: “Particularly where an expert’s qualifications rest on his experience (as opposed to scientific or technical training), the expert ‘must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.’”  No. 218CR00103RDPJEO, 2019 WL 3082662, at *2 (N.D. Ala. July 15, 2019) (slip copy). 

The Ifediba court also explained the key distinction between abstract qualifications and qualifications on a specific topic: “Often the qualification prong is not about if the proffered expert is qualified in the abstract, but instead it is about whether he is qualified to render an opinion on a specific topic.”  Ifediba, 2019 WL 3082662, at *2 (emphasis added).  In Ifediba, the district court applied this reasoning and held that a medical expert was qualified to testify regarding whether opioid-prescribing practices were for a legitimate medical purpose when his qualifications included:

• graduating from medical school,

• completing a surgery residency,

• completing an addiction medicine fellowship,

• having years of experience as a clinical practitioner in pain management and addiction, and

• having a board-certification in addiction medicine.  Ifediba, 2019 WL 3082662, at *3.     
  
  

By contrast, in Johnson v. ABF Freight Sys., Inc., 2:18-cv-01835-MHH, at *3, 6–7 (N.D. Ala. Dec. 11, 2020), the Court held that an emergency room doctor with no specific background in radiology, orthopedics, or spinal injury, but who was a mechanical engineer with accident reconstruction experience, (1) was not qualified to opine that the plaintiff’s spinal injuries were a preexisting condition, but that (2) he could offer biomechanical opinions, including testimony about general medical causation by virtue of his engineering and accident reconstruction expertise.[1] 

“Qualification” in the Fifth Circuit

The Fifth Circuit takes a less restrictive view.  For example, the Fifth Circuit has noted:

“A lack of personal experience—the district court’s concern here—should not ordinarily disqualify an expert, so long as the expert is qualified based on some other factor provided by Rule 702. . .”

In the Fifth Circuit’s words, “an expert witness is not strictly confined to his area of practice, but may testify concerning related applications; a lack of specialization does not affect the admissibility of the opinion, but only its weight.” United States v. Wen Chyu Liu, 716 F.3d 159, 168–69 (5th Cir. 2013).  Generally speaking, district courts within the Fifth Circuit seem more inclined to allow an expert in a general field to testify in that field, regardless of specialization within that field.

In Sandifer v. Hoyt Archery, Inc., No. CIV.A. 12-322-SDD, 2015 WL 4429189, at *3–4 (M.D. La. July 20, 2015), a defendant challenged an expert mechanical engineer’s qualifications to provide opinion testimony about compound bow design, arguing that he had never worked for a compound bow manufacturer or designed a compound bow, had not published in the area of compound bow design, had never investigated any other compound-bow-related incidents or formulated any prior opinions on compound bow design, and had no life experience in archery or the use and operation of compound bows. The court concluded that, since the expert was a mechanical engineer with a Ph.D. who taught at the university level and practiced in the field of forensic engineering, he was qualified to offer opinion testimony in the field of mechanical engineering—including the mechanical design and alternative designs of compound bows.  Id. 

Layssard v. United States is also instructive.  No. CIV.A. 06-0352, 2007 WL 4144936, at *3 (W.D. La. Nov. 20, 2007).  In that case, the court allowed a biomechanical engineer who was not a medical doctor to offer general biomechanical engineering opinions about the forces involved in a collision and the likelihood that they would lead to injury, excluding him from offering a medical causation opinion in the particular case, but suggesting that if he were a medical doctor, he would have been permitted to testify about medical causation without limitation.  Id.  The court stated: “Put simply, medical doctors are qualified—indeed, uniquely qualified—to offer opinions as to medical causation; bio-mechanical engineers are not.”

Conclusion

As discussed above, Federal Rule of Evidence 702 governs the qualification requirement for experts in all federal courts, but there are developing, divergent trends in the Eleventh and Fifth Circuits about what this means, with the Eleventh Circuit tending to require a higher level of specialization for an expert to qualify, and the Fifth Circuit considering specialization within a field to go to the weight, rather than the admissibility, of the expert testimony.

By Casey DeReus

[1] Other courts have also rejected the idea of a blanket qualification for all physicians to testify about anything medically-related.  See, e.g., Alexander v. Smith & Nephew, P.L.C., 98 F. Supp. 2d 1276, 1281–82 (N.D. Okla. 2000).