Larchick v. Pollock, No. 1 CA-CV 19-0649 FC (App. Div. I, December 9, 2021) ( J. Campbell)
Expert's personal opinion as to admissibility of his opinions in a court of law irrelevant to question of admissibility & rule of 702 does not require expert use of “all possible methods” in forming opinions/court's ruling no evident supported a conclusion of an increase in value of business was error where such evident existed in pretrial statement and disclosure statement.
Evidence: Rule 702 Admissibility of Expert Testimony When Not “All Methods” Used in Forming Opinions/Admissibility of Statements by a Party in Pretrial Statement & Disclosures
In this divorce action, wife brought her real estate business into the marriage and the business grew during the 10 year marriage. During the divorce trial the husband offered an expert witness who had authored a report that the business had increased in value by $546,041 during the marriage. However the expert also opined in the report that “[I]n the event that testimony is required, either at a deposition or trial, we require the calculation schedules be upgraded to a formal summary valuation report with a conclusion of value.” The trial court precluded the testimony finding that Rule 702 of Evidence requires an expert “follow all possible methods [and use] all reliable methodology.” The court then ruled there was no evidence the business increased in value during the marriage” so husband loses on that claim. The Arizona Court of Appeals vacated and remanded in part.
Rule 702 provides that a person qualified by experience or knowledge may give expert opinions if it will help the jury decide the facts. The court is the gatekeeper to assure experts are indeed experts in the field in question but this function should not replace the adversary system. An expert's opinion on the admissibility of his opinions in court is not dispositive of the question of admissibility. This is a question for the court to determine based upon the rules of evidence independently of the expert's opinion. An expert is not required to have followed ‘'all possible methods” under Rule 702 in order for his or her opinions to be admissible. While this expert's opinions may have been seriously challenged on cross-examination and in the end the court might decide to give the opinions no weight, it was improper to exclude this evidence out of the box.
As to evidence of increased value in the business, even accepting the inadmissibility of the husband's valuation expert testimony, the wife had listed her own expert in the Pretrial Statement and Disclosures avowing that expert would testify the business had only increased in value $93,000. This was admissible evidence the trial court was bound to consider. Hence the ruling there was no evidence of increased value was erroneous.
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