On July 18th, the New York Law Journal published an article on the 40-year history of the Carter-Wallace test. The article addresses the background, ruling and results of Carter-Wallace Inc. v. Otte and how this case is affecting expert testimony.
There are many situations in which an attorney may want to present the testimony of an expert hired by another litigant. Litigation involving codefendants, multiple plaintiffs or several courts are common scenarios in which an attorney may want to use prior expert testimony.
Fact Witnesses v. Expert Witnesses
Both Federal Rule of Evidence 804(b)(1) and Federal Rule of Civil Procedure 32 address the requirements that must be met before prior testimony may be admitted in the place of live testimony. These rules set forth specific restrictions before prior testimony can be presented:
- The witness must be unavailable, meaning s/he is more than 100 miles from the courthouse
- The opposing party must have had “opportunity and similar motive” to cross-examine the witness
In 1972, the Second Circuit ruled in Carter-Wallace that the testimony of expert witnesses differed from fact witnesses and therefore had additional restrictions:
- The attorney must try to get the expert to voluntarily attend the trial
- If the expert is still unavailable, the attorney must prove that there is no other expert of similar qualifications who could attend
These additional restrictions apply only to expert testimony due to the expert’s unique position in court proceedings. The first requirement was added because “unlike the typical witness whose involvement with the case may depend on the fortuity of his observing a particular event and whose presence at trial is often involuntary, a party ordinarily has the opportunity to choose the expert witness whose testimony he desires and invariably arranges for his presence privately, by mutual agreement, and for a fee.” The reasoning behind the second requirement was the “even if one particular expert is unavailable…there will usually be other experts available to give similar testimony orally.”
Conflict in the Circuit Courts
When the Second Circuit Court ruled that there were additional requirements for using prior expert testimony in place of live testimony, it was meant to change the rules. What happened instead was a series of conflicting rulings among the federal courts.
As Daniel Brown and Leo Caseria discuss in their article, the federal courts are split on this issue. The Second, Third and Sixth circuits impose additional requirements, the Fifth and Eleventh circuits do not and the Tenth Circuit has ruled both ways.
“Whether a party will be able to submit prior testimony of an expert witness without fulfilling the additional requirements imposed by Carter-Wallace will in large part depend on the particular federal court in which the dispute arises,” stated Brown and Caseria in the conclusion of their article. “Case law indicates that, at the very least, the proponent of prior expert testimony should make an attempt to contact the expert, offer the expert his or her usual fee, request the expert's attendance at trial, and work around the expert's schedule and needs before trying to admit his or her prior testimony.”
Tell us: How has Carter-Wallace influenced your use of prior expert testimony in place of live testimony.